1. Defences Intoxication

2. 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

3. 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

4. Basic Intent Offence Voluntary intoxication Guilty (Majewski) Involuntary intoxication Not guilty (Hardie) Specific Intent Offence Voluntary intoxication Guilty (Majewski) Involuntary intoxication Not guilty (Hardie)

5. 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

6. 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

7. 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 Kingston

8. 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

9. 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

10. 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 self- induced intoxication can only be raised as a defence to crimes of specific intent, but not to crimes of basic intent

11. 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 Specific or basic intent

12. 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 Majewski

13. 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? Problems

14. 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

15. 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

16. 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 Drunken intent (Dutch courage)

17. 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 Summary

18. 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 Overview

19. Intoxication Case Questions

20. DPP v Majewski (1976) 1How does someone become intoxicated? 2What element of the crime is the defendant denying by pleading intoxication? 3What is the position if, despite his or her intoxicated state, the defendant is still able to form mens rea? 4Who has the burden of proof? 5What is a specific intent crime? 6What is a basic intent crime? Case 51 Questions

21. 1A person can become intoxicated by means of alcohol or drugs or both together. 2The 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. 3In that situation, the defence will not apply. 4The 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

22. 5It 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. 6With 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 51 Answers continued

23. R v O’Grady (1987) 1What was the defendant convicted of in this case? 2What defence did the defendant try to rely upon? 3Did the court accept the defence? 4What 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’? 5Following this case, can a defendant avoid criminal liability based upon a mistake induced by voluntary intoxication? 6Why was the defendant in Attorney General for Northern Ireland v Gallagher (1963) unable to rely on intoxication? Case 52 Questions

24. 1The defendant was convicted of manslaughter. 2The defendant pleaded self-defence. 3No. The court stated that the defendant was unable to rely on self- defence 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. 4This 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. 5No. This case suggests that an intoxicated mistake will not provide a defence to either specific or basic intent crimes. Case 52 Answers

25. 6The 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 52 Answers continued

26. R v Kingston (1995) 1How did the defendant become intoxicated? 2When will a defendant be considered to be involuntarily intoxicated? 3What is the effect of a successful plea of intoxication? 4How did the defendant claim that the trial judge had misdirected the jury? 5Did the court allow the defendant to rely upon intoxication? 6What happened in R v Hardie (1984)? Case 53 Questions

27. 1The defendant stated that another man had spiked him with drugs. 2This 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 3The 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

28. 4The 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. 5No. 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. 6After 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. Case 53 Answers continued

29. Extras

30. 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.

31. 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.

32. 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.

33. 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.

34. 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.

35. 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.

36. 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.

37. 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.

38. 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.

39. 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.

40. 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.

41. 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.

42. 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.

43. 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.