Intoxication – understand the law on intoxication and apply it to scenarios

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

 Alcohol, drugs and other substances eg glue sniffing  Not really a “defence”  It is relevant as to whether or not the defendant had the required mens rea for the offence  If no mens rea because of intoxicated state then may be not guilty  This depends on ◦ Whether the intoxication was voluntary or non- voluntary ◦ Whether the offence is one of specific or basic intent

 Intoxication Not capable of forming the mens rea due to being too drunk/drugged. Set out in the Majewski Rules; 1.Defendant is so intoxicated that he cannot form the mens rea for the offence. Kingston – “an intoxicated intent is still an intent” 2.Decide whether the offence is specific or basic intent; Specific Murder S18 Basic Manslaughter S20 S47 Assault Battery Specific IntentBasic Intent Voluntary Intoxication Involuntary Intoxication Liable for fallback position – intent crime Complete acquittal Example of involuntary: Spiked Drink

 Specific intent = those which require specific intention for the mens rea eg murder, s18 OAPA  Basic intent = those which recklessness is sufficient for mens rea eg manslaughter, s20, s47, assault and battery

 What is meant by voluntary intoxication?  D chosen to take intoxicating substance  Also where D knows that the effect of a prescribed drug will be to make him intoxicated  D may not have the required mens rea because of their intoxicated state

 Can negate mens rea  If D is so intoxicated he has not formed mens rea for offence then he is not guilty  Sheehan and Moore (1975)  D’s very drunk; poured petrol over tramp and set light to him  Too drunk to have any intention to kill or cause GBH  HELD because did not have mens rea for murder their intoxication was a defence to that offence  BUT found guilty of manslaughter as it is an offence of basic intent

 Where D has necessary mens rea despite his intoxication then he is guilty of the offence – the intoxication does not form a defence  A drunken intent is still an intent  AG for Northern Ireland v Gallagher  D decided to kill his wife  He bought a knife to kill her and a bottle of whisky  He drank a large amount of the whisky  Then he killed her  Conviction for murder upheld

 What is meant by ‘specific intent crime’?  Give examples?  Where the mens rea of the offence requires intention  Examples: Murder, GBH with intent, Theft

 If offence charged is one of basic intent then intoxication is not a defence  Becoming voluntarily intoxicated is considered a reckless course of conduct and recklessness is enough to constitute the mens rea  DPP v Majewski (1976)  D took alcohol and drugs - got very intoxicated  Attacked people in pub and police who tried to arrest him  Convicted – 3 offences of s47 ABH and 3 of assaulting police officer in execution of his duty  House of Lords upheld all convictions – intoxication was not a defence

 What is meant by ‘basic intent crime’?  Give examples  Where the mens rea requires recklessness  Example: Rape, involuntary manslaughter, criminal damage, assault, battery, ABH

 Where D did not know he was taking an intoxicating substance  Spiked drink, unexpected effect of prescribed drugs  Test = did the D have the necessary mens rea when he committed the offence?  If yes = guilty – no defence even if he would not have committed the offence without the intoxication lowering his resistance to committing the offence

 Kingston (1994)  D’s coffee drugged by someone who wanted to blackmail him  He was then shown a 15 year old boy who was asleep and invited to abuse him  D did and was photgraphed by the blackmailer  Hof L upheld his conviction for indecent assault – he had formed the mens rea for the offence and so the involuntary intoxication was not a defence

 But if the D did not have necessary intent then he will not be guilty – no mens rea = not guilty of specific intent offence  Nor can he be guilty of a basic intent offence  Because the D has not been reckless in getting intoxicated!  Hardie (1984)  D took valium not knowing they could make his behaviour unpredictable

 Explain when a mistake caused by intoxication will give the D a defence?  If the D is mistaken about a key fact because he is intoxicated then it depends on what the mistake was whether or not he is able to get a defence.

D pleads intoxication Voluntary Use Majewski A specific intent crime The defence may succeed A basic intent crime No defence Involuntary Use Kingston Either specific or basic intent Only succeeds if no mens rea

 Explain how an honest mistake can lead to someone not having mens rea?  Ignorance of the law excuses no one B (a minor) v DPP  D aged 15 years, sat next to a girl aged 13 years on a bus in Harrow. He asked the girl several times to perform oral sex with him. She repeatedly refused. He was charged with inciting a girl under 14 to commit an act of gross indecency contrary to section 1(1) of the Indecency with Children Act Section 1(1).  He claimed that he had believed the girl to be over 14 

 Not guilty  The law will never require that the mistake have been reasonable, provided it was honestly held  Despite being incorrect the boy’s belief was honestly held hence the not guilty verdict

 Duress of threats: ◦ Has to be a threat of death or serious injury  Duress of circumstances: ◦ A person can feel threatened from the circumstances they find themselves in  Cases where duress is not available as a defence are: 1.Murder/attempted murder 2.Treason

 Whether or not the defendant was compelled to act as he did because, on the basis of the circumstances as he honestly believed them to be, he thought his life was in immediate danger. (Subjective test)  Would a sober person of reasonable firmness sharing the defendant's characteristics have responded in the same way to the threats? (Objective test)  R v Graham (1983)

 What characteristics of the D can the court consider in the defence of duress?  R v Bowen (1996)  Things like:  Age-very young or very old may be more susceptible to threats  Pregnancy-there is the additional fear for the safety of the unborn child  Serious physical disability- this could make it more difficult for the D to protect himslef  Recgonised mental illness-include PTSD anything making a person more susceptible to threats but excluding low IQ  Gender- although the CA thought that many women might have much moral courage as men.

 How imminent must the threat be for the D for duress to be available as a defence?  Must be an imminent threat with no safe avenue of escape  If the D voluntarily associates with violent offenders ad commits an offence because he is threatened by them, can he have a defence of duress?  No

 Is self-induced duress available as a defence? ◦ R v HASAN (2005)- Duress not available to gang members - objective test ◦ D was involved with prostitutes and others one of whom, S was a drug dealer whom D thought to have committed three murders. D took a prostitute to the house but the occupant refused her, but on that visit D became aware of a safe in the house. D was convicted of aggravated burglary when he returned to the house armed with a knife and attempted to steal the contents of the safe. D claimed that he had acted under duress exerted by S and a black man, a "lunatic yardie" who accompanied D so he had no chance to escape or opportunity to go to the police. The black man said he had a gun. D was sentenced to 9 years' imprisonment.

Self-defence and the prevention of crime

 There are two defences  Self-defence (which includes defence of another) at common law, and  Prevention of crime under the Criminal Law Act 1967  This provides ‘a person may use such force as is reasonable in the circumstances in the prevention of crime’  In both cases the defence is only available if the force used is ‘reasonable in the circumstances’

 S 76 Criminal Justice and Immigration Act 2008 explains the degree of force which can be used  S 76 applies whether D is relying on the common law defence of self-defence or the statutory defence of prevention of crime  Whether force is reasonable is decided by reference ‘to the circumstances as D believed them to be’

 D ‘may not be able to weigh to a nicety the exact measure of any necessary action’  If D only did what was ‘honestly and instinctively thought’ to be necessary this would be ‘strong evidence that only reasonable action was taken’  Whether the degree of force was reasonable is decided ‘by reference to the circumstances as D believed them to be’

 This is based on Williams but put onto a statutory footing by S76  What happened in Williams ?  Why did the CA quash his conviction?

 So, whether the force was reasonable is decided by reference to the circumstances as D believed them to be - s 76 (3) and  S 76 (4) adds that if D claims to have held a particular belief as regards the circumstances the reasonableness of that belief will be relevant as to whether D genuinely held it, but  if the belief was genuinely held, D is entitled to rely on it, whether or not it was mistaken, and  whether or not the mistake was reasonable

 This case shows that if D mistakenly believes someone is being assaulted then self-defence may be relied on even if there was no actual assault  Even if the mistake is unreasonable  S 76 clarifies that the mistake need not be reasonable, but the more reasonable it is, the more likely it was genuinely held  However, the force must be reasonable in the (mistaken) circumstances

 D does not have to wait until attacked before using force  What were the facts of AG’s Reference (No 2 of 1983) ?  The defendant was a shopkeeper. His shop was in the centre of extreme riots which were taking place. On the night of the 11th/12th July 1981damage was done to his shop and goods were stolen. After this attack he remained in his shop without sleep and in fear of further attack from 1.30 a.m. until the morning of 14th July.  He was in fear that he and his property might be the subject of further attack. He made 10 petrol bombs to protect himself in case he was subject to further attacks. He was charged with offences under section 4 of the Explosive Substances Act 1883.

 He raised the defence of self defence and the jury acquitted him. The Attorney General referred a question on a point of law to the Court of Appeal as to whether the defence of self defence could be used to cover preparing for attack. Held: The defence could be allowed for offences based on possession in preparation of attacks provided the possession ceases when the danger of attack is no longer imminent.

 Under s 76 (5) D cannot rely on a mistaken belief caused by voluntary intoxication  If D is not intoxicated, the jury must decide whether the force was reasonable based on D’s perception of the facts (Williams)  If it is excessive the defence fails – Clegg  In Martin the farmer shot and killed a burglar and seriously injured another. The jury rejected self-defence as they were retreating and there was clearly no threat

 The Court of Appeal held D’s medical condition, which made him perceive greater danger, was not relevant  Can you see a problem with this?

 There are essentially 2 questions for the jury  Did D genuinely believe force was necessary in the circumstances? (What D believed; a subjective question)  Was the degree of force reasonable in those circumstances? (An objective question)  S 76 makes clear that the second is decided by reference to the first  This makes the decisions in Martin & Cairns seem wrong

Self-defence & prevention of crime Did D honestly believe that force was necessary? Williams A drunken belief is not OK A mistaken belief is OK Was the force reasonable in the circumstances? Martin

 Clancy is threatened by Neil, a fellow employee who tells Clancy that he will tell their boss about Clancy’s previous convictions for theft. Neil says that Clancy has to help him shoplift from the corner shop by distracting the shop assistant while Neil’s steals. Clancy does not want to lose his job so agrees.  For duress has to be threats of death or serious injury- not allowed

 Natasha’s boyfriend, Ross, is a drug dealer. She knows he has convictions for violent offences. He threatens to beat her senseless unless she agrees to take some drugs to one of his customers. She is caught and charged with possessing drugs with intent to supply.  Was there threat of death serious injury? Yes  Was the threat imminent? Yes  Would a reasonable person have acted in the same way? Yes  Defence of duress allowed

 Tamara is due to give evidence against Alex’s boyfriend who is facing an attempted murder trial. A week before she gets a text message saying she will be killed if she gives evidence. She attends court but lies on oath.  Case- Hudson and Taylor  two teenage girls committed perjury during the trial of X. They claimed that X's gang had threatened them with harm if they told the truth and that one of them was sitting in the public gallery during the trial. Held: Lord Widgery CJ;  “…the threats … were likely to be no less compelling, because their execution could not be effected in the court room, if they could be carried out in the streets of Salford the same night. [the defence] should have left the jury to decide whether the threats had overborne the will of the appellants at the time when they gave the false evidence.”  Although DD were protected during the trial the danger would have persisted afterwards.  Not guilty

 Alice took some illegal drugs, she is told that while under the influence witnesses saw her hit Peter in the face with a saucepan breaking his jaw. Alice cannot remember doing this. She is charged with s18 OAPA 1861  This is a specific intent offence  It was a case of voluntary intoxication so the question is whether had mens rea for the offence? She says she cannot remember so it seems that se had no mens rea however will not be a complete defence as this will just lower the charge to a lesser basic intent crime in this case s20 GBH there are not defences for Basic intent crimes when voluntarily intoxicated because this is a reckless course and recklessness is the necessary mens rea for basic intent crimes.