Defences
Intoxication
Lesson Objectives
• I will be able to state the definition of the defence
of intoxication
• I will be able to distinguish between crimes of
basic and specific offence
• I will be able to distinguish between the effect of
voluntary and involuntary intoxication
• I will be able to explain the effect of mistake
when intoxicated
• I will be able to explain the law relating to Dutch
courage
Intoxication
• Can be voluntary or involuntary
• If voluntary – in general should not be excused
from the consequences of their actions as they
are responsible for it
• Intoxication can be used to show that defendant
could not form the necessary mens rea of the
offence they have committed
• The law distinguishes between involuntary and
involuntary intoxication and the offences can be
specific or basic intent
Basic Intent
Specific Intent
Offence
Offence
Voluntary
Involuntary
Voluntary
Involuntary
intoxication
intoxication
intoxication
intoxication
Guilty
Not guilty
Guilty
Not guilty
(Majewski)
(Hardie)
(Majewski)
(Hardie)
Voluntary/Involuntary
• Voluntary intoxication is where the defendant takes the drink or drugs of
his own free will
• Involuntary is where a person does not know he was taking alcohol or an
intoxicating drug – in such cases, there will only be a defence if the mens
rea for a crime was not formed
• Involuntary intoxication can arise where:
– The defendant’s drinks were spiked with alcohol or drugs as where a
drug is slipped into a soft drink or alcohol is added without the
defendant’s knowledge
– The defendant takes drugs prescribed by his doctor in accordance with
the instructions
– The defendant takes a non-dangerous drug, although not prescribed
to him, in a non-reckless way
• If involuntary intoxication is to be a defence, it must be shown that
the effect of the intoxication is that the defendant was, as a result
of the intoxication, unable to form the mens rea of the offence
• This is not always possible – Kingston (1994)
• Kingston (1994):
– A defendant can only use the defence of involuntary intoxication
if the court is convinced that because of being intoxicated the
defendant lacked the required mens rea for the offence; in the
case, the court said that an intoxicated intent was still an intent
– The House of Lords stated that involuntary intoxication was not
a defence to a charge if it was proved that the defendant had
the necessary intent when the offence was committed, even
though he was not to blame for the intoxication
– Lord Mustill saw this as a case of disinhibition – the taking of the
drug lowered his ability to resist temptation, so that his desires
overrode his ability to control them
Kingston
• The test from Kingston is that the intoxication
must negate the mens rea
• It is not enough that it removed inhibitions
• Kingston may not have committed the offence
if sober
• But he intended to do it so had mens rea
• Where the defendant does not realise the
strength of the alcohol or drug he has taken, it
does not make the intoxication involuntary
• Allen (1988) – intoxication remains voluntary
even where the defendant claims he did not
know the strength of the drink or drugs
• The defendant was charged with buggery and
indecent assault following an evening drinking in
the pub and some wine given later by a friend
• His claim that he did not realise the alcoholic
strength of the wine that he had been given did
not make the intoxication involuntary
• Where the defendant takes a non-dangerous
drug, although not specifically prescribed to
him, the taking may be treated as involuntary
and may therefore provide a defence if he
does so non-recklessly – Hardie (1985)
• Hardie (1985):
– The voluntary consumption of dangerous drugs
might be conclusive proof of recklessness; this is
not the case with non-dangerous drugs, and a jury
should have been directed to consider whether
the defendant had been reckless in consuming the
Valium
Basic/Specific Intent
• The principle is that intoxication is a defence to crimes of
specific intent and not those of basic intent
• This is in respect to the case of Majewski (1977)
• Majewski (1977):
– This case made the distinction between crimes of
basic intent and specific intent
– The House of Lords considered the whole aspect of
intoxication and came to the conclusion that selfinduced intoxication can only be raised as a defence to
crimes of specific intent, but not to crimes of basic
intent
Specific or basic intent
• So voluntary intoxication can be a defence to a
specific intent crime like murder
• But not a basic intent crime like manslaughter
• This is because for a basic intent crime
recklessness is enough for mens rea
• D is seen as reckless in getting intoxicated so
has mens rea for the basic intent crime
• This was decided in Majewski
Majewski
• What were the facts?
• The HL held that voluntary intoxication could
not negate mens rea where the required mens
rea was recklessness (basic intent)
• However, voluntary intoxication can negate
mens rea for a crime requiring specific intent
Problems
• Usually, the mens rea for an offence must be
for a particular outcome
• Majewski allows a general type of
recklessness to suffice, e.g. recklessly getting
drunk
• Do you think this is fair?
• A crime of basic intent is one where there is a
general criminal intent rather than a sort of ulterior
intent that the defendant wishes to achieve from
his actus reus.
• Self-induced (voluntary) intoxication is no defence
to a crime of basic intent as the defendant’s actions
in becoming intoxicated voluntarily is in itself
reckless behaviour – he knows there is a risk he will
behave badly or criminally, but goes ahead anyway
• This distinction is sometimes summarised as
specific intent crimes require the mens rea of
intention and basic intent crimes only recklessness
• For many crimes, there are variations that have the
specific intent crime as the more serious offence,
with a lesser offence of basic intent
• A defendant who had the actus reus and mens rea
for both offences but was voluntarily intoxicated at
that time, might be able to show that he was so
intoxicated that he could not form the specific
intent of the more serious offence, and thus only
be convicted of the lesser, basic offence
• However, not all ‘specific’ intent offences have a
corresponding ‘basic’ intent offence. An example is
theft
Drunken intent (Dutch courage)
• Intoxication may not negate mens rea
• In AG for Northern Ireland v Gallagher it was
held that a drunken intent is still an intent
• D bought a knife to kill his wife (showing mens
rea) and a bottle of whisky to give himself
‘Dutch courage’
• He had already formed the intent when he
decided to kill his wife and bought a knife so
could not use the defence
Summary
Voluntary
A specific intent
crime
The defence may
succeed
A basic intent crime
No defence
Either specific or
basic intent
Only succeeds if no
mens rea
Use Majewski
D pleads intoxication
Involuntary
Use Kingston
Overview
Intoxication can be by
drink, drugs or other
substances
You need to distinguish
between voluntary and
involuntary intoxication
You need to distinguish
between specific intent
and basic intent crimes
Voluntary intoxication
can be a defence to
crimes of specific intent
but not those of basic
intent
Intoxication
Case Questions
Case 51 Questions
DPP v Majewski (1976)
1 How does someone become intoxicated?

2 What element of the crime is the defendant denying by pleading
intoxication?
3 What is the position if, despite his or her intoxicated state, the defendant
is still able to form mens rea?
4 Who has the burden of proof?
5 What is a specific intent crime?
6 What is a basic intent crime?
Case 51 Answers
1 A person can become intoxicated by means of alcohol or drugs or both

together.
2 The defendant is denying that he or she had mens rea. He or she must
show that the alcohol, drugs or combination of the two made him or her
incapable of forming the mens rea of the relevant offence.
3 In that situation, the defence will not apply.
4 The burden of proof rests with the defendant. He or she must provide
some evidence of intoxication before the defence can be put before the
jury. It is then up to the prosecution to prove beyond reasonable doubt
that, despite his or her evidence, the defendant still formed the
necessary mens rea.
Case 51 Answers continued
5 It is difficult to know which crimes are which, but generally a crime of
specific intent is one where the mens rea is intention only. Examples of
specific intent crimes are murder, s.18 OAPA 1861, theft, robbery and
burglary. Voluntary and involuntary intoxication both provide a defence to
specific intent crimes.
6 With basic intent crimes, the mens rea can include recklessness.
Examples of basic intent crimes include involuntary manslaughter, s.20
OAPA, s.47 OAPA, assault and battery. If the defendant is voluntarily
intoxicated, he or she will not have a defence to a crime of specific intent
if he or she has been reckless. Involuntary intoxication, on the other
hand, will provide a defence to basic intent crimes.
Case 52 Questions
R v O’Grady (1987)
1 What was the defendant convicted of in this case?

2 What defence did the defendant try to rely upon?
3 Did the court accept the defence?
4 What did Lord Lane mean when he said that ‘reason recoils from the
conclusion that in such circumstances a defendant is entitled to leave
the court without a stain on his character’?
5 Following this case, can a defendant avoid criminal liability based upon
a mistake induced by voluntary intoxication?
6 Why was the defendant in Attorney General for Northern Ireland
v Gallagher (1963) unable to rely on intoxication?
Case 52 Answers
1 The defendant was convicted of manslaughter.

2 The defendant pleaded self-defence.
3 No. The court stated that the defendant was unable to rely on selfdefence based on his mistake as to the facts because the mistake had
been induced by voluntary intoxication. His appeal therefore failed and
the conviction was upheld.
4 This means that defendants who have injured or killed others because of
a drunken mistake should not be able to rely on that mistake to avoid
liability for their actions.
5 No. This case suggests that an intoxicated mistake will not provide a
defence to either specific or basic intent crimes.
Case 52 Answers continued
6 The defendant wanted to kill his wife. He bought a knife and a bottle of
whisky, which he drank in order to give himself ‘Dutch courage’. Once
sufficiently intoxicated, he stabbed and killed his wife with the knife. The
House of Lords upheld his conviction for murder since, on the evidence,
he had formed the mens rea at the relevant time. The rule is that if
someone deliberately gets intoxicated to give himself or herself ‘Dutch
courage’ to commit a crime, intoxication will not be a defence to any
crime — even to crimes that can only be committed with a specific
intention.
Case 53 Questions
R v Kingston (1995)
1 How did the defendant become intoxicated?

2 When will a defendant be considered to be involuntarily intoxicated?
3 What is the effect of a successful plea of intoxication?
4 How did the defendant claim that the trial judge had misdirected
the jury?
5 Did the court allow the defendant to rely upon intoxication?
6 What happened in R v Hardie (1984)?
Case 53 Answers
1 The defendant stated that another man had spiked him with drugs.

2 This can arise in a number of different situations:
 if the defendant had his or her drink spiked without his or her knowledge, so that


he or she was unaware of consuming drugs or alcohol
if the defendant took prescription drugs
if the defendant had an unexpected reaction to soporific drugs
3 The effect of intoxication varies according to the type of crime the defendant is
charged with, and whether the defendant was voluntarily or involuntarily
intoxicated:
 If the defendant was voluntarily intoxicated and incapable of forming mens rea,
he or she will have a defence to specific intent crimes but not to crimes of basic
intent.


If the defendant is charged with a specific intent crime that does not have a
corresponding basic intent crime, e.g. theft, intoxication can provide a complete
defence.
If the defendant was involuntarily intoxicated and incapable of forming mens rea,
he or she will have a defence to both basic and specific intent crimes.
Case 53 Answers continued
4 The defendant said that the trial judge had misdirected the jury by telling it that it
could convict him if it was sure that he had still formed mens rea despite the effect
of the drugs.
5 No. It was held that the ruling of the judge at the original trial was correct. If it was
proved that the required intention was present when the act was committed, the
defendant was unable to rely on involuntary intoxication.
6 After arguing with his girlfriend, the defendant took some of her Valium tablets to
calm his nerves. Valium is a sedative, and its usual effect is to make the person
sleepy. In this case, however, it failed to have the usual effect, and while under its
influence, the defendant set fire to his flat. On appeal, his conviction under the
Criminal Damage Act 1971 was overturned. The Court of Appeal said that since the
usual effect of the drug was soporific, the defendant was not reckless in taking it if
he was unaware that it would have an unexpected effect upon him.
Extras
Introduction
• A defendant can become intoxicated by means of alcohol or
drugs or both together. The essence of the defence is that the
defendant was so intoxicated that he or she was incapable of
forming the mens rea of the offence that he or she is charged
with.
• The defendant who gets drunk or takes drugs and then
does something that he or she would not otherwise have
done will not be able to rely on the defence.
• Since the effect of the intoxication must be to render the
defendant incapable of anticipating any of the consequences
of his or her actions, the defence will only apply in very
limited circumstances where the effect of the intoxication was
extreme.
Elements
Absence of mens rea
The defendant must show that the alcohol, drugs or a
combination of the two made him or her incapable of
forming the mens rea of the relevant offence. If, despite
his or her intoxicated state, the defendant was still able to
form the necessary mens rea, the defence will not apply.
Voluntary intoxication
The courts draw a distinction between voluntary and involuntary
intoxication. Voluntary intoxication applies to the defendant who
has voluntarily consumed alcohol or drugs commonly known to
make people aggressive or out of control.
‘Dutch courage’
If someone deliberately gets intoxicated to give himself or
herself ‘Dutch courage’ to commit a crime, his or her intoxication
will not be a defence to any crime – even to crimes that can only
be committed with a specific intention.
Involuntary intoxication
A defendant may be classed as being involuntarily
intoxicated. This can arise in a number of different situations:
• The defendant was ‘spiked’ without his or her knowledge,
and was therefore unaware that he or she was consuming
drugs or alcohol.
• The defendant took prescription drugs.
• The defendant had an unexpected reaction to soporific
drugs.
Specific intent crimes
Generally, a crime of specific intent is one where the mens
rea is intention only. Examples of specific intent crimes are:
• murder
• s.18 Offences Against the Person Act 1861
• theft
• robbery
• burglary
Voluntary and involuntary intoxication both provide a defence
to specific intent crimes.
Basic intent crimes (1)
With basic intent crimes, the mens rea can include recklessness.
Examples of basic intent crimes include:
• involuntary manslaughter
• s.20 Offences Against the Person Act 1861
• s.47 Offences Against the Person Act 1861
• assault
• battery
If the defendant is voluntarily intoxicated, he or she will not
have a defence to a crime of specific intent if he or she has been
reckless. Involuntary intoxication, on the other hand, will provide
a defence to basic intent crimes.
Basic intent crimes (2)
For most offences of specific intent, there is a similar basic
intent crime. For example, if the defendant is charged with
murder and pleads intoxication, he or she may be charged
with the basic intent crime of manslaughter instead. If the
defendant is not guilty of s.18 due to voluntary
intoxication, he or she may be guilty of s.20 instead.
However, not all specific intent offences have a
corresponding basic intent crime, and in these cases,
intoxication can be a complete defence. An example of
such an offence is theft.
Burden and standard of proof
The burden of proof rests with the defendant. He or she
must provide some evidence of intoxication before the
defence can be put before 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.
Effect
The effect of intoxication varies according to the type of crime
that the defendant is charged with and whether the defendant
was voluntarily or involuntarily intoxicated.
• If the defendant was voluntarily intoxicated and incapable of
forming mens rea, he or she has a defence to specific intent
crimes but not crimes of basic intent. If the defendant is charged
with a specific intent crime, which does not have a
corresponding basic intent crime, e.g. theft, intoxication can
provide a complete defence.
• If the defendant is involuntarily intoxicated and incapable of
forming mens rea, he or she will have a defence to both basic
and specific intent crimes.
Evaluation (1)
Distinction between basic and specific intent crimes
It is difficult to know for certain which offences the courts
will class as specific intent crimes and which they will class
as basic intent crimes. Critics argue that the distinction
should be abandoned and the matter left in the hands of
the jury in each case. Others argue that since the
defendant was unable to form mens rea, he or she should
not be held criminally liable at all. However, policy issues
would probably prevent this from ever happening.
Evaluation (2)
Inconsistency in its effect
Some specific intent crimes, such as theft, do not have a
corresponding basic intent crime. Intoxication therefore operates as
a complete defence to those crimes. However, for specific intent
crimes that do have a corresponding basic intent offence, the
defendant will be convicted. For example, if the defendant is
charged with theft but successfully pleads intoxication, he or she
will be acquitted, as there is no corresponding basic intent crime
with which he or she can be charged. If a defendant is charged with
murder, however, and successfully pleads intoxication, he or she will
be convicted of manslaughter instead. Furthermore, there is no
logical reason why some crimes have a corresponding offence while
others do not.
Reform (1)
Ensuring that all specific intent crimes have a
corresponding basic intent offence
It has been suggested that the current distinction between
basic and specific offences be maintained, as long as all
crimes of specific intent are given a corresponding basic
intent crime.
Reform (2)
Intoxication offence
The Butler Committee suggested that the current law
should be replaced with a new offence of ‘dangerous
intoxication’. Juries could then find a defendant guilty of
‘dangerous intoxication’ rather than the offence
committed. A maximum penalty of 1 year was suggested
for a first offence, rising to 3 years for any further
convictions.
Reform (3)
Full defence
Critics have argued that since the defendant was incapable
of forming mens rea, legal principle dictates that he or she
should be acquitted. This would mean that intoxication
would operate as a complete defence to any crime. This is
the position in Australia, but policy considerations mean
that the approach is unlikely to be followed in the UK.