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

Introduction Defences become relevant when the actus reus and mens rea of an offence have been committed Consider defences after you have discussed the offences The defence of intoxication through drink or drugs is sometimes said not to be a defence at all, but incapacity to form the mens rea of the crime (therefore, it will not be of universal application)

Intoxication Can be voluntary or involuntary In general, where it is voluntary, a person should not be excused from their actions Intoxication, however, can be used to show that the defendant could not form the necessary mens rea for the offence with which he has been charged – in that sense, it can provide a defence The law distinguishes between voluntary and involuntary intoxication and the effect this has on crime of basic and specific intent

Voluntary and involuntary intoxication Voluntary = own free will Involuntary = does not know they were taking it (will only be a defence if mens rea for the crime was not formed) Basic intent offence Voluntary intoxication Guilty Majewski Involuntary intoxication Not guilty Hardie Specific intent offence Voluntary intoxication Guilty Majewski Involuntary intoxication Not guilty Hardie

Involuntary intoxication can arise where: – The defendant’s drinks were spiked with alcohol or drugs – 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) – a defednant 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 intoxicated intent was still an intent

Where the defendant does not realise the strength of the alcohol or drug he has taken, it does not make the intoxication involuntary The fact that the intoxication remains voluntary can be seen from the case of Allen (1988) – intoxication remains voluntary even where the defendant claims he did not know the drink’s or drug’s strength Where the defendant takes a non-dangerous drug, although not prescribed to him, in a non-reckless way, the taking may be treated as involuntary and may therefore provide a defence – 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 and Specific Intent The principle is that intoxication is a defence to crimes of specific intent and not those of basic intent – Majewski (1977) – this case made the distinction between crimes of basic intent and crimes of specific intent The difficulty arises in that whilst the term ’specific intent’ had been used in previous cases, ‘basic intent’ had not – it was not wholly clear what was meant by specific intent It seems that 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 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 rick he will behave badly or criminally, but goes ahead anyway

For many crimes, there are variations that have the specific intent crime as the more serious offence, with a lesser offence of basic intent An example is basic criminal damage under s1(1) of the Criminal Damage Act 1971, and aggravated criminal damage under s1(2) of the Act The ‘with intent to endanger life’ is the specific intent crime – thus, 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 aggravated crime and thus only be convicted of the lesser, basic offence Not all specific intent crimes have a lesser basic offence – e.g. theft

Basic Intent CrimesSpecific Intent Crimes Theft Burglary Blackmail Fraud under s2 Fraud Act 2006 Fraud under s11 Fraud Act 2006 Making off without payment Criminal Damage under s1(1) Criminal Damage Act 1971 Criminal Damage under s1(2) Criminal Damage Act 1971 It should also be noted that if the mens rea is formed before the intoxication, as in ‘Dutch courage’, there will be no defence of intoxication Attorney-General for Northern Ireland v Gallagher (1963) – if the mens rea is formed before the intoxication, as in Dutch courage, there will be no defence of intoxication; here the intention to kill his wife was formed before he got drunk

Exam Q