How effective was the defence of intoxication?
How effective was the defence of intoxication?
Intoxication is the excessive drinking and various forms of drug taking which can be voluntary or involuntary. Intoxication can be a defence depending on whether or not D has the required mens rea. If in an intoxicated state without the required mens rea D may not be guilty. This depends on whether the intoxication was voluntary or involuntary and whether the offence charged was one of specific or basic intent.
The absence of mens rea is required otherwise intoxication cannot be a defence as shown in Kingston (1994) ‘a drugged intent is still intent’. Even if D lacks the mens rea D can still be found liable which is an exception to the rule that both mens rea and actus reus are required.
Voluntary intoxication can negate the mens rea for a specific intent offence. If D is so intoxicated he cannot form the mens rea, he may be able to put forward the defence, but normally he will not avoid liability completely, if it is possible to convict him a lesser basic intent offence.
If D is so intoxicated that he has not formed the mens rea for the offence he is not guilty. This rule comes from the case DPP v Beard. D had been charge with murder and pleaded intoxication to deny malice aforethought. From this case it is now accepted that D need not be incapable of forming intent; it is sufficient if they do not in fact do so. However, D may be very drunk and yet still form the required mens rea. In Sheehan & Moore (1975) it was held that because they did not have the mens rea for murder, their intoxication was a defence to that offence.
Where the offence charged is one of basic intent then intoxication is not a defence. This is because voluntarily getting intoxicated is considered a reckless course of conduct and recklessness is enough to constitute the necessary mens rea. This comes from leading case DPP v Majewski (1977) where D went on a 36 hour drugs and drink marathon. He got involved in a pub brawl and assaulted a customer, the manager and the police officer, who tried to arrest him. The House of Lords upheld D’s conviction for ABH and assault. His intoxicated state was not a defence as ‘it is a reckless course of conduct and recklessness is enough to constitute the necessary mens rea’. It suggests that D would automatically be guilty, merely because he has committed the actus reus of a basic intent offence whilst drunk. That is, D intoxication substitutes for the mens rea of the offence. D’s intoxication is conclusive proof, that D was reckless. However in Richardson & Irwin (1999) where drunken students dangled V over the balcony, dropped him and he was injured the Court of Appeal quashed the convictions because ‘the defendants were not hypothetical reasonable men, but university students. This is more lenient and shows the inconsistency of voluntary intoxication.
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Voluntary intoxication is never a defence to crimes of basic intent as it only requires mens rea or recklessness. Basic intent crimes include assault S47 and battery S20, criminal damage, rape and manslaughter. Specific intent crimes can be allowed as either a full or partial defence. Those included are attempt, aggravated criminal damage, theft robbery, GBH, burglary and murder. If the intention is not established then it is felt that the offender cannot be guilty because he cannot be shown to have the appropriate mens rea. However, D can be found guilty of a lesser offence known as the fall back offence such as murder to manslaughter and GBH S20 to battery S20. Although, if there is no lesser offence then intoxication becomes a full defence such as theft and robbery.
In Heard (2007) he was drunk and he began rub himself against a policemen, he arrested and convicted of intentional sexual touching. Court of Appeal concluded that the offence of sexual assault in s3 of the Sexual Offences Act 2003 is a basic intent, despite the fact that s3 requires proof that D touched V ‘intentionally’ which normally indicated a crime of specific intent. Therefore Heard provides an alternative definition of ‘specific’ intent; where the prosecution must prove some ‘purpose’ on the part of D, which ‘goes beyond the actus reus’.
In Attorney General for Northern Ireland v Gallagher (1963) D had a grudge against his wife and decided to kill, he prepared himself by buying a knife and bottle of whisky to give himself Dutch Courage. His conviction for murder was restored by the House of Lords and affirmed that the defence was not available in a crime of basic intent and that even in a crime of specific intent it had to be shown that the degree of drunkenness was such that D ‘rendered so stupid by drink that he does not know what he is doing’.
D’s intoxication will be considered involuntary if drugs taken under medical prescription, calming/soporific drugs, drink or drugs taken by D without his knowledge and taken under duress. If intoxication is involuntary then the defence will be available to basic and specific intent crimes as long as D lacks the mens rea. If the intoxication negatives mens rea, he is entitled to an acquittal; otherwise he remains liable, even though he would not have acted as he did had he remained sober.
Intoxication due to prescribed medication results in if D knew that the medicine was likely to make him ‘aggressive, unpredictable or uncontrolled’ then it would be open for the jury to decide. This comes from the case Bailey (1983) which D was a diabetic who wounded (s20) his ex-girlfriends’ new boyfriend after taking insulin but no food, causing loss of consciousness so D did not have the mens rea. It was held that intoxication arising from excessive consumption of alcohol and drugs were distinct from intoxication from unexpected side-effects of therapeutic substances.
In Hardie (1985) D became depressed when his relationship broke down with his girlfriend, he then took some valium tablets after being reassured that they would not do him any harm. He set fire to a wardrobe and claimed he was asleep and could not remember anything. His conviction of arson was quashed by the Court of Appeal as the normal effect of the drug was merely sedative, they decided that the taking of the drug had not been reckless after taking into account all of the facts.
Lack of knowledge applies when D must not have known he was taking an intoxicating substance. This is illustrated in Allen (1998) who drinks homemade wine and does not realise the strength of it. He became extremely drunk and committed a serious sexual assault. His conviction was upheld as there was no evidence that his drinking was not voluntary, this shows involuntary intoxications are interpreted tightly. However, D may be able to rely upon the defence of involuntary intoxication when his drink is spiked with an entirely different type of intoxicant which is shown in Eatch (1980) when D smoked cannabis and drank a can of beer to which a stronger drug had been added without his knowledge.
Even if D’s intoxication is involuntary, he will not be able to use it as a defence if he is still able to commit the offence. Kingston (1994) illustrates this when D was drugged because they wanted to blackmail him, D was shown a 15 year old boy and D abused him and was photographed. The House of Lords upheld his conviction of indecent assault as the defendant had formed the mens rea for an offence, then the involuntary intoxication was not a defence.
Drunken mistake can be used if D did not have the required mens rea for the offence then for a specific intent offence he has a defence. If the offence is basic intent then D has not got a defence.
In Lipman (1970) D killed his girlfriend after a bad LSD trip. He was convicted of manslaughter because it had been an unlawful act resulting in death for which voluntary intoxication was not a defence and this was a reckless course of conduct. He could not be found guilty of murder as intention to kill or cause GBH could not be established. This was followed by Fatheringham (1998) D claimed he was very drunk and has mistakenly raped a 14 year old babysitter believing that it was his wife. Court of Appeal held that mistake caused by self-induced intoxication cannot be a defence and neither a defence to crimes of basic intent.
If the mistake is the amount of force needed in self-defence, D will not have a defence of basic and specific intent crimes. This was stated in O’Grady (1987) which D claimed V hitting him and so hit V with a glass ashtray and woke the next morning to find V dead. D was convicted of manslaughter, a basic intent offence which was upheld by the Court of Appeal. This was later confirmed in Hatton (2005) D believed that V hit him with a 5 foot long stick and he had defended the attack. When D awoke he found V dead from injuries caused by a sledgehammer. D was convicted of murder. The Court of Appeal held that the decision in O’Grady was not limited to basic intent crimes and applied to specific intent crimes. A drunken mistake about the amount of force required in self-defence was not a defence. By refusing to allow a drunken mistake as to the amount of force required, the law is trying to balance the need to be just to the defendant with the protection of victims.
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Summary: This piece explains the defences of voluntary and involuntary intoxication and uses cases in support. However it never addresses the question 'How effective is the defence ...' Rating: ***