Intoxication Evaluation Flashcards
(4 cards)
The DISTINCTION BETWEEN SPECIFC AND BASIC intent crimes
The DISTINCTION BETWEEN SPECIFC AND BASIC intent crimes and the use of the defence has been criticised as being too simplistic an approach. The general law takes a subjective approach to mens rea. If there is no subjective mens rea there should be no liability as can be seen in the case of R v G and R (2003), where as the boys were not aware of the risk of criminal damage they were said not to be reckless. The case of Majewski (1977) ignores this subjective approach for basic intent crimes, which are normally high in volume, the moral questionability of getting drunk is seen as a reckless course of action in itself so the defence is unarguable.
Where the defence can be used even if the intoxication was voluntary
Where the D is charged_with murder or S18 he can use the defence of intoxication, even if voluntary, as these are specific intent crimes. If the D is found not guilty there are fallback offences of manslaughter and S20 for which the D is likely to be found guilty under the Majewski rules.
However for other offences there is often no fall back offence if a D is found not guilty of a specific intent crime which seems to allow a culpable D to have an unfair advantage if he is lucky enough to ‘choose’ such an offence, e.g. Theft
Intoxication defence is based on public policy
The defence is also criticised as it is TOO MUCH BASED ON PUBLIC POLICY. Over the last 30 years public policy has become the main theme of law on intoxication not truly balancing the proof of fault on behalf of the D. For example parliament has enacted the Criminal Justice and Immigration Act 2008 that states for self-defence D cannot rely on ‘any mistaken belief attributable to intoxication that was voluntarily induced’. Majweski has been heavily criticised for allowing the defence to prove the intoxicated state of D at sometime upto the crime as a replacement for proving the actual MR of the specified offence. This ignores one of the key principles of criminal law that D must be proved to have the MR of the offence before proven guilty and that this should coincide with the AR.
Intoxication has alas been criticised for DEVELOPING INCONSISTENT RULES ACROSS A RANGE OF OTHER DEFENCES.
Intoxication has alas been criticised for DEVELOPING INCONSISTENT RULES ACROSS A RANGE OF OTHER DEFENCES. In Richardson and Irwin (1999) the defendant students were messing around after drinking and held their friend over the balcony of his room. Unfortunately he fell and was severely injured. The court decided that the jury should consider the effect of alcohol on the consent to this horseplay in the defence of consent. This seems at odds with other defences such as self defence, where cases such as O’Grady and Hatton have specifically excluded a mistaken belief as to the use of force for self defence where intoxication is at the root of the mistake. In the defence of insanity, if the defendant’s drink or drug taking produces a disease of the mind he can be found insane under the M’Naghten rules. This was case of Davis (1881) and approved in both Beard (1920) and Gallagher (1963). So besides being a defence that can be particularly harsh on the action of a D that most of society takes part in, drinking alcohol, it is a defence that lacks a truly consistent approach.
