Intoxication Flashcards
intoxication ao1 (8 marks)
Is intox fit for purpose (20)
The common law defence of intoxication has evolved on a case by case basis and so is arguably fit for purpose. Legal principle
suggests there should be a defence for those who commit crimes when their thinking is impaired due to alcohol, drugs or
other substances. For public policy reasons the defence is restrictive or it would be an easy excuse for criminality. There are
complicated divisions in the law which cause problems, such as between crimes of specific and basic intent in voluntary
intoxication. Arguably intoxication is not a true defence as it applies if the defendant has no mens rea so one of the basic
elements of the crime is missing. Critics want urgent reform but this has not happened.
Voluntary intoxication is when D chooses to be in that position. The case of Sheehan and Moore says a drunken intent is still
an intent. For crimes of specific intent crimes such as murder, theft and s18 OAPA 1861, intoxication drops liability to a lesser
included offence (Beard). In Lipman, L did not have the mens rea for murder because he had taken LSD but he was liable
for manslaughter. Arguably the defence is fit for purpose as the defendant is not thinking like sober people but they remain
guilty of an offence. Critics say this does not help much as few crimes require specific intent. Theft is problematic as there is no
offence to drop down to, making the law inconsistent and needing reform.
If the crime is one of basic intent, the law is clear and there is no defence, as in Majewski where a combination of drink and
drugs led to M committing several different basic intent offences. Recklessness was enough mens rea and M had voluntarily
taken drink and drugs over a 24 hour period. As more crimes are satisfied by recklessness the defence meets public policy
concerns by being tight. Although we all take risks it also shows that some cross the line into criminality. However, critics say
the law needs reform urgently as it is not fair to punish those who do the actus reus without the key element that allocates
blame and justifies punishment. Even worse, intoxication is often seen as an aggravating factor in sentencing. It is also
problematic that intoxication may have occurred sometime before the offence, when there was no thought of commission, |
which is unjust.
If intoxication is used to gain the courage to commit a crime this is Dutch Courage and is no defence, as in Gallagher. This is
good and works well.
Involuntary intoxication occurs through no fault of the defendant and is a complete defence, making it very tight and hard
to succeed with. There must be no awareness of the intoxication, which can be hard to prove. The case of Kingston shows |
inconsistency. At his trial K said he had been involuntarily intoxicated as his drink was drugged; he was convicted as his assault
was intentional - a drunken intent was still an intent which is a public policy argument. The CA said he should have a defence
as the intoxication was not his fault, a legal principle argument. The HL restored the conviction, making it clear the public
policy principle was key. This shows high level courts can have different views — an advantage and a weakness of precedent. |
It was probably inevitable that public policy would prevail based on social paternalism but it raises uncomfortable issues and
suggests reform is needed.
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A curious situation arises with soporific drugs, as in Hardie. He raised involuntary intoxication at his trial but was convicted for
voluntarily taking his partner’s out of date Valium tablets. The CA allowed his appeal, saying his intoxication was involuntary
as he expected the Valium to calm him down. Arguably this is a good decision as reasonable people would have thought the
same as H so he should have a defence. However, it is reckless to take medication prescribed for someone else especially if it is
out of date and a defence would be wrong. This heightens the need for reform to sort the law out.
For reform, the Butler Committee recommended an offence of dangerous intoxication whilst others say intoxication should
be no defence and just dealt with in sentencing. There is no drive for reform due to Parliament’s inertia. Alcohol costs the
NHS lots of money but huge revenue is generated by taxes and the licensing industry has strong lobbying powers. Critics
say it would be hard to create a workable statute so sticking with what already exists is good enough. The judiciary only
occasionally comment that if the law is to be reformed then Parliament should
