Advise the Parties as to their criminal liability, adding critical comment where you think the law is unsatisfactory.

The use of ‘maliciously’ in both the mens rea of section 18 and the ratio of Latimer, is however important in analysing Charles liability. In Cunningham, the Court of Criminal appeal interpreted malicious as to mean that the defendant had to see that such harm would be done by his actions, and still went on to take the risk. One could argue that Charles must have foreseen that using such an object as a glass bottle over some ones head would constitute serious harm. This would however be a decision for the jury to decide, and may be rectified by some of the defences Charles may have.

It is important to note that Charles was ‘very inebriated’ when the offence occurred, and although this may stand as a defence in its own rights, the area of intoxication fundamentally affects other types of defences that Charles would plee in order to lessen or free him from liability. In what appears to be voluntary intoxication on Charles behalf, there will usually be no defencebut in certain circumstances it may act as a partial defence.

If we are to take possible defences under the actus reus of such an offence, it could be argued that Charles did not undertake the violence ‘unlawfully’. Charles may argue that his actions were that to protect Bessie from any harm, and was thus acting in self defence. Although the fear of attack was not directed at Charles, after rulings such as R v Rose and other common law examples, it is apparent that Charles may act in self defence of another. Furthermore, it is believed that if a defendant makes a mistake about the circumstances in which force is used, they are entitled to be judged on the facts as they believed them to be  (R v Scarlett 1993). However, the fact that Charles was intoxicated changes his use of such a defence, especially because self-defence will invariably act as a total defence. Those like Clarkson and Keating argue that alcohol increases ‘defensive activity’ and thus increases the interpretation of non-threatening behaviour to be more so than is actually true.

The courts have taken a stance that however genuinely believed, a drunken mistake in self defence is no defence to a criminal charge. Such examples are R v O’Grady  where the defendant who woke from a drunken stupor found his friend hitting him, and acting in intoxicated ‘self-defence’, killed his friend through several blows. Indeed Lord Lane C.J in the defendants appeal claimed that if ‘the mistake was caused by voluntarily induced intoxication, the defence must fail.’ In Charles case, it is possible that this defence would fail, considering that it appears his intoxication was voluntary. His alcohol consumption would have inevitably impaired his perception of what he believed was Albert’s threatening and potentially deadly behaviour towards Bessie.

        Due to the strict approach to intoxication and self defence, Charles may try to use intoxication as evidence to disprove the mens rea of  the offence. Indeed if he did not form the malicious intent due to mistake, he did not form the mens rea of the defence and would therefore be acquitted or charged with a lesser offence. It is first important to note that ‘intoxication’ in its legal definition is only concerned with drunkenness or drug use that is sufficiently severe. In Stubbs it was stated that the intoxication needed to be ‘very extreme’. In Charles case it is apparent that he is ‘very inebriated,’ and could possibly suggest such severity as illustrated in Stubbs. This would however, be a question for the jury to decide based some higher accounts of burden of proof from the defendant that he was ‘intoxicated and on the attempts of the prosecution to illustrate that this drunkenness did not negate his mens rea.

It is first important to establish that intoxication will only act as a defence to specific crimes, as displayed in Majewski who committed assault and whose intoxication was not taken into consideration because it was a crime of basic intent. This has been thought to be due to the fact that those who cannot be charged with specific intent, can then be charged with the ‘lesser’ crime. This can not necessarily be the case with basic intent crime. However, it was held in the earlier case of  Sheehan that a ‘drunken intent is nevertheless an intent,’ and therefore Charles could still be liable. However one could argue that in such circumstances as Charles that his intent to be ‘violent’ is differential to the others, considering it was for the seeming purpose of defending someone else. Also if Albert were to die as a result of his injuries however, the judgement of O’Connor suggests that in cases of murder, consideration of the forming of the specific intent may be taken into account, transferring the liability to manslaughter.

There has been much controversy over intoxication, as to whether criminals should be charged with offences under the influence of Sheehan. Lord Birkenhead suggests that ‘where a specific intent is an essential element in the offence...and the accused (is) incapable of forming such an intent (it) should be taken into consideration’. Indeed although the Caldwell recklessness has been somewhat weakened recently, Charles did take a risk by becoming intoxicated, and would thus be blameworthy for this actions. Whilst others like Lord Elywyn-Jones LC suggest that ‘if a man of his own violition takes a substance which causes him to cast off the restraints of reason and conscience, no wrong is done to him by holding him answerable criminally.’ Such is the argument that the general principle of intoxication and criminal liability are not unethical or contrary to the principle of natural justice. Fundamentally the argument between principle (that such defendants often lack the mens rea requirement of the offence) and policy, whereby the interest of the public take precedence against self-induced violent behaviour, has created need for reform.

Those like the law reform have proposed that a new special offence of causing harm whilst deliberately intoxicated. Through this reform the issue of fair labelling would be irradiated and sentencing would be more lenient. Indeed, Charles’ potential liability would not only result in being labelled with an offence akin to murder, but could also potentially serve a life sentence under section 18, for trying to help in what he believed to be a fatal attack. Studies in Australia and New Zealand who regulate law on the topic much the same as the proposed reforms, have shown that there are no more acquittals or weaker public interest under such a charge.

In conclusion, it would seem that Charles’ actions contrary to section 18 may only be partially defended by will of the jury. If they believe the mens rea requirement is not wholly satisfied, it is likely that he would be charged under section 20 (that requires a more ‘basic’ intention). The use of the word ‘cause’ in section 18 is also ‘wider’ than the infliction of harm needed in section 20, which would still constitute the causation of Bessies harm through transferred malice and also cover the Grevious Bodily Harm of Albert.

 

Bibliography

Books:

 CMV Clarkson & HM Keating, Criminal Law ‘Text and Materials’, Fifth Edition, 2003

Articles:

 A.J.Ashworth, ‘Transferred Malice and Punishment for Unforeseen Consequences’ (1978) pp 77,  84-89

Lord Birkenhead LC’s historical survey of intoxication and the courts

Cases:

 C v Eisenhower 1984

 DPP v Smith 1961

 R v Latimer L.R 17 Q.B.D 359

 R v Cunningham [1957] 2 Q.B 396; [1957] All E.R 412, CCA

 R v Rose (1884) 15 Cox C.C 54 0

 R v Scarlett [1993] 4 All E.R 629 ; (1994) 98 Cr. App, R 290

 R v O’Grady [1987] Q.B 995 CA (Crim.Div)

 R v Stubbs (1989) 88 Cr. App. R 53 (1988) 10 Cr. App. R (S.) 97

 R v Majewski [1977] AC 443; [1976] 2 All ER 142 (HL)                                                                                                                                                                                          

 R v Sheehan (1975) 60 Cr App R 308; [1975] 2 All ER 960 (CA)

 R v O’Connor [1991] Crim. L.R 135, CA

Statutes:

 Offences Against The Person Act 1861

Reform Bills:

Draft Criminal Law Bill 1993, cl. 32 (Law Com. No. 218, 1993)

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