INTOXICATION AS A DEFENCE

1. INTOXICATION AS A DEFENCE Mark Hage

2. 5 Basic points on defence of intoxication • Covers, drink, drugs or other substances, eg glue sniffing. • Based on whether D formed MR of offence • Results in acquittal if successful • Different rules for voluntary and involuntary intoxication • Different rules for basic and specific intent crimes. • If the D has become so intoxicated they lose all self control then this becomes an automatic state. Such a state can be classed as Involuntary and be a defence of Non insane automatism.

3. Voluntary Intoxication and Specific intent crimes • Where D has chosen to take the intoxicating substance or where D knows the effect of prescribed drugs will make him intoxicated. • Specific Intent crimes require specific MR of the AR. • DPP v Beard - If D is so drunk that incapable of forming the MR then cannot be convicted of the offence. • Sheehan v Moore - D's v. drunk when the threw petrol over tramp and set light to him. V died. Can Intoxication be defence?

4. Voluntary Intoxication and basic intent crimes • Majweski - "It is a reckless course of conduct (getting drunk) and recklessness is enough to constitute the necessary mens rea". • Criticism: This ignores the principle regarding the coincidence of AR and MR. In this case MR takes place before AR. This may be several hours before the incident.

5. Involuntary intoxication • Situations where D has not known he has taken intoxicating substance, e.g. spiked drink. • This type of intoxication also covers the taking of drugs which results in unexpected effects. • Kingston: The test is did the D have the necessary MR for the offence? • If the answer is yes then involuntary intoxication is no defence. • If the answer is no then involuntary intoxication may provide a defence if P cannot show D had the required MR. • Hardie: D took valium as he was feeling depressed. Unusually the drug had the opposite effect and he set fire to a wardrobe. Conviction quashed as the jury should have been allowed to consider the defence as not a reckless course of action.

6. Intoxicated Mistake • Where D makes a mistake as to a key fact because of intoxication it depends on what the mistake was about as to whether it will mean D can have the defence or not. • Lipman: D took drugs and thought his girlfriend was a snake attacking him. D killed her and was allowed to use defence of intoxication for the SI crime of murder. However found G of Manslaughter as Basic alternate offence. • SELF DEFENCE • O’grady: As getting intoxicated is a reckless course of action Majweski rules apply where intoxication voluntary and basic intent crime D defending himself from. • Hatton: D drank 20 pints of beer and thought V hit him with a stick. V was found dead with blows from sledgehammer. CA affirmed O'grady and said rule also applied to SI offences and level of force needed. • Criminal Justice and Immigration Act 2008 S76(5): "D cannot rely on any mistaken belief attributable to intoxication that was voluntarily induced” • Bottom line is any mistake as to the need for force or the level of force used to defence oneself will not be looked at where it is induced by intoxication.

7. Exception where Intoxicated belief allowed • Intoxicated mistake is allowed for criminal damage ( a basic intent crime) due to the interpretation of a statutory defence of a belief in the owners consent to the damage. • S5 Criminal Damage Act 1971 allows honest belief that person would have consented as a defence whether or not the belief is justified. • Jaggard v Dickinson: The QBD has interpreted the act to include intoxicated mistakes as to belief in consent, “Parliament specifically required the court to consider the D's actual state of belief" where D broke the wrong window of a house he thought was his friends. • This issue will figure prominently in problem solving in Law 04, next exam.

8. Criticisms and reform • Intoxication is a defence based on public policy. • This is because many offences are committed because of intoxication. • Therefore the defence seeks to balance the rights of the D, the V and society. • This does cause problems with legal principles, eg Majweski rules flout the coincidence of AR and MR principle. Generally the courts have created rules to deter potential D’s through harsh rules on the defence. • Recent changes to the the law on prevention of crime and mistaken use of force (S76(5)) have emphasised parliament’s view that intoxication as a source of criminal activity and should not be supported by this defence, clearly the judiciary and law makers are speaking with one voice on this issue. • In 1993 the Majweski rules were criticised by the Law Commission. • However in 1995 the Law Commission supported the rules as “fair”. • Specific and basic intent crimes. Where D is NG of a specific intent crime there is usually an alternate offence of basic intent. However where this isn't the case this can lead to injustice, eg Theft. Why is this compared to say a charge of murder? • Involuntary Intoxication. Where D’s inhibitions are broken down by involuntary intoxication Kingston states that as long as D has MR then still guilty. This ignores the fact D is not to blame for intoxication in the first place.

9. Reform • Butler Report 1975: Proposed a new offence of “dangerous intoxication”. Would be used when acquitted of more serious offence. • 1993 Law Commission report:Evidence of Voluntary intoxication should be allowed for all offences. This would mean D could be acquitted if didn't have necessary MR, including for basic intent crimes.Instead would have separate offence of criminal intoxication. • 1995 Law Commission report:Abandoned any changes proposed in 1993. Suggested simply codifying the law as it stood including Majweski rule. • 1998 Government Draft offences Against the Person Bill: Stated that intoxication could not be relied on to negative recklessness. So far not enacted.

10. Complete Page5 Q1 – Andy. Apply Intoxication to any V and any offence– 15mins • Plan • Define Intoxication & what is successful use • Offence– Specific or Basic? • Invol intoxication – Key Case Apply • Vol Intoxication – Key case apply • Repeat.

11. Complete Page 6 Q4 – Leon. Apply Intoxication to S18 & S20 on Michael – 15mins • Plan • Define Intoxication & what is successful use • S18 – Specific or Basic? • Invol intoxication – Key Case Apply • Vol Intoxication – Key case apply • S20 – Specific or Basic? • Invol intoxication – Key Case Apply • Vol Intoxication – Key case apply