defences - intoxication criminal defences © the law bank criminal defences intoxication 1

Defences - Intoxication

Criminal Defences

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Criminal Defences

Intoxication

1


Criminal Defences

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Starter• Look at the sources in front of you. Pass them around so that you get a

chance to see each of them and then take an educated guess as to whether in each of the cases the defendant could possibly have a defence of Intoxication.

• Be prepared to justify your answer.

• Extension Q – What are the key common elements with these scenarios if any?


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Scenario 1A man who has been having a number of restless nights takes his wife’s valium believing it will help him sleep. It has an odd effect on him and he sets fire to his house.

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Scenario 2At the school prom and unbeknown to Sam someone has slipped vodka into the non alcoholic punch. Sam is allergic to vodka and seriously assaults his arch love rival Timmy as a result.

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Scenario 3Having assaulted Timmy, Sam’s girlfriend ditches him. Sam is distraught and starts drinking. He drinks so much that he losses all powers of thought and in his total drunken stupor he kills his girlfriend. He has no idea what he did.

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Scenario 3Before Sam is arrested he meets Timmy. Timmy who is drunk sees Sam and instantly flies into a rage and hits him on the head with a chair. Sam sustains injuries consistent with GBH (and bizarrely turns into an old man.)

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Criminal Defences

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Objectives

• Identify the law on the general defence of intoxication

• Apply the law on intoxication to a number of problem scenarios

• Evaluate the law on intoxication with regard to its effectiveness and fairness


Criminal Defences

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General Defences - Intoxication• Includes alcohol, drugs and solvents

• If intoxicated D may not have the necessary mens rea

• Public policy means it would be wrong to allow intoxication as a defence

• Dependant on whether you choose to become intoxicated or not (voluntary vs involuntary)

• Specific and basic intent crimes treated differently


Criminal Defences

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Activity - Revision• In your groups place the key offences we look at

into two columns one for specific and one for basic.

• Explain why each crime is in each of the columns.

• When you have done check off against this list and add the crimes you do not have:

– Murder, voluntary manslaughter, involuntary manslaughter, theft, criminal damage, aggravated criminal damage, assault, battery, section 47 ABH, section 20 GBH, section 18 GBH


Criminal Defences

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Intoxication - The General Rule• Basic rule – partial defence for specific intent crimes only

• R v Majewski (1977)

• As basic intent crimes have an element of recklessness it has been decided that drunkenness is a reckless act and therefore confers liability

• Involuntary intoxication will always provide a defence for both basic and specific intent crimes providing D did not form mens rea after intoxication. Voluntary intoxication MAY be an defence for specific intent crimes but NEVER for basic intent crimes


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DPP v Majewski [1976] 2 All ER 142, HL

D took a mixture of drugs and alcohol and subsequently assaulted 3 people in a fight in pub and then a PC who attend the scene followed by 2 more officers at the police station. His defence was that he had been drinking and taken drugs and had no intention to commit the acts which he did. His conviction was upheld: D's intoxication was the result of his own voluntary reckless act, said the House of Lords, and the trial judge had rightly directed the jury that they were to ignore it in considering whether he had formed the necessary mens rea in a crime of basic intent.

Principle - Lord Elwyn-Jones LC said that if a man of his own volition 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 for any injury he may do while in that condition. His conduct in reducing himself to that condition supplies the evidence of mens rea sufficient for crimes of basic intent. Lord Simon said one of the prime purposes of the criminal law is the protection from certain proscribed conduct, including unprovoked violence, of persons who are pursuing their lawful lives. To allow intoxication as a defence would leave the citizen legally unprotected from unprovoked violence where this was the consequence of drink or drugs having obliterated the capacity of the perpetrator to know what he was doing. This case made the distinction between crimes of basic intent and crimes of specific intent.

Guilty


Criminal Defences

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Activity• Why is the principle in DPP v. Majewski [1976] 2

All ER 142, HL, vulnerable to criticism?

• As the defendant's intoxication replaces the need for mens rea, there may never be a point in time when the actus reus and mens rea coincide.

• The defendant's intoxication is viewed as a reckless condition and this is used to replace the recklessness requirement of the mens rea.


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Voluntary Intoxication• Where a person takes drink or drugs of own free will

• A defence only for specific intent crimes AND if proved D had no mens rea

• However, if drunk and still has intent then will be guilty

• AG for N Ireland v Gallagher (1963) – Dutch courage rule:


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Attorney-General for NI v Gallagher [1961] 3 All ER 299, HL

A man D had decided to kill his wife and drank a bottle of whisky to give him the "Dutch courage" to do so.

Principle - The House of Lords (reversing the Court of Appeal) said that as long as D had the mens rea of murder at the time of drinking the whisky, and did not positively discard it, he could properly be convicted. Lord Denning: defence not available to either 'specific' or 'basic' intent, if drink or drugs taken to fortify courage. If mens rea is formed before intoxication, as in Dutch Courage, there will be no defence of intoxication. Here the intention to kill his wife was formed before he got drunk.

Guilty


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Constructing liability • May be able to reduce sentence to create liability

• Some offences have a variation of specific and basic intent crimes

• Where this is the case if the specific intent crime cannot be used it is possible to charge with the basic intent crime

• Examples include Criminal Damage, GBH and Murder/Manslaughter

• R v Lipman (1976)


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R v Lipman [1969] 3 All ER 410, CA

D and his girlfriend V each took a quantity of LSD (a hallucinatory drug). During his "trip", D imagined he was being attacked by snakes at the centre of the earth and had to defend himself; in doing so, he actually killed V by cramming eight inches of sheet down her throat.

Principle - He was acquitted of murder because the jury were not sure that he had the necessary intention, being intoxicated, but convicted of manslaughter.

Guilty


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Involuntary Intoxication• Where a person does not know they are taking/have taken drink or drugs

• May be several different circumstances in which this is possible

• For involuntary intoxication to be used a defence D must show that he was unable to form the mens rea

• R v Kingston (1994)

• If D can form mens rea when intoxicated will still be liable


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R v Kingston [1994] 3 All ER 353, HL

A man D who was sexually attracted to boys (but who had never previously acted on that attraction) went to the flat of another man X. Unknown to D, X intended to lure D into a compromising situation in order to blackmail him, and drugged D's coffee. X then took D into a bedroom where there was a 15-year-old boy, also drugged. D performed various sexual acts with the boy and was subsequently charged with indecent assault. D claimed that he had no recollection of the assault, as his drink had also "been laced" with drugs by X, who photographed the indecent act.

Principle - Involuntary intoxication is not a defence to a defendant who is proved to have the necessary criminal intent when he committed the offence even if under the influence of drugs administered secretly to the accused by a third party. There was no defence of exculpatory excuse known to the criminal law since the absence of moral fault on the part of the defendant was not sufficient in itself to negative the necessary mental element of the offence. The trial judge had correctly directed the jury that if they were sure that despite the effect of any drugs the defendant still intended to commit an indecent assault the case against him was proved. Lord Mustill said he was not sure if a line could definitively be drawn between offences of "specific" and "basic" intent.

Guilty


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Involuntary Intoxication scenarios

• Where D does not realise the strength of the alcohol or drug they have taken

• R v Allen (1988)

• Where D takes a non dangerous drug not prescribed for him

• R v Hardie (1985)


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R v Allen [1988] Crim LR 698, CA

D was charged with buggery and indecent assault (these being crimes of basic intent), but claimed he was so drunk he had not known what he was doing. He had drunk a certain amount of wine without realising how strong it was, and his intoxication should therefore be regarded as involuntary.

Principle - Upholding his conviction, the Court of Appeal said that where a defendant knows he is taking alcohol, the drinking does not become involuntary just because he does not know its exact nature or strength. Intoxication remains voluntary even where the defendant claims he did not know the strength of the drink or drugs.

Guilty


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R v Hardie (1985) 1 WLR, 64

D started a fire in a friend's flat after taking valium (not prescribed for him).

Principle – Caldwell distinguished because he did not have the mens rea, and considered that while intoxication cannot usually be pleaded as a defence to offences of recklessness, the rule will not generally apply to drugs … if the effect of a drug is merely soporific or sedative the taking of it, even in some excessive quantity, cannot in the ordinary way raise a conclusive presumption against the admission of proof of intoxication for the purpose of disproving mens rea in ordinary crimes, such as would be the case with alcoholic intoxication or incapacity or automatism resulting from the self-administration of dangerous drugs. The voluntary consumption of dangerous drugs might be conclusive proof of recklessness, this is not the case with non-dangerous drugs, and a jury should have been directed to consider whether the defendant had been reckless in consuming the Valium.

Not guilty


Criminal Defences

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Activity• Try this one out for size:

• Early one morning, Alan is standing on a stepladder, washing the windows of his house with a powerful detergent solution. Bob ad Chris come walking noisily up the street, having spent all night out, drinking alcohol. Bob shouts something and suddenly veers across the street in Alan’s direction, followed by Chris, who is trying to take hold of his arm. Alan is convinced that Bob is coming to knock him off the ladder and quickly gets down and throws the bucket of detergent solution over Bob. Some of the solution also goes over Chris, causing him to suffer an extreme allergic reaction which requires hospital treatment for damage to the skin on his face. In fact, though very drunk, Bob merely wanted to have a friendly talk to Alan.

• Explain whether Bob could plea intoxication in relation to the above incident.


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Intoxication & other defences • Intoxication and Insanity - cannot be used unless it leads to alcoholism

• Intoxication and automatism - cannot be used if recklessly self induced

• Intoxication and self-defence - if drunken mistake is about self defence or prevention of crime D will never have a defence

• R v Hatton (2005) and R v O'Grady (1987)

• s.76 Criminal Justice and Immigration Act 2008


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R v O'Grady [1987] 3 All ER 420, CA

D and his friend M spent all day drinking, and consumed about eight flagons of cider between them. During the night they had a fight, and D killed M supposedly in self-defence. The evidence suggested that in his drunken state D had overestimated the threat to himself, and so had used excessive force in his own defence. He was charged with murder and convicted of manslaughter.

Principle – The Court of Appeal said there were two public interests to be balanced: on the one hand D should be able to do what he honestly believed necessary to protect himself, but on the other the innocent victim should be protected from injury or death by another's drunken mistake. Reason recoiled from the conclusion that D should be able to walk free after a drunken killing, and logic would extend such a defence (if allowed) even to Lipman (above). This would clearly be unjust, so it must remain the case that a defendant cannot rely on self-defence where it results from a mistake caused by his own intoxication.

Guilty manslaughter


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R v Hatton [2005] EWCA Crim 2951, CAD beat the deceased to death with a sledgehammer after drinking over 20 pints of beer. His recollection of events was unclear but he believed that he was under attack. The issue was the reasonableness of D’s reaction as he had believed the facts to be, even if that belief was mistaken and the mistake was caused by his intoxication.

Principle – In self-defence, a mistake induced by drunkenness cannot be relied on. The decision in O’Grady was not obiter simply because it was a case of manslaughter, and that, accordingly, anything said about the law of murder had to have been unnecessary to the decision. The issue considered by the court in O’Grady had been whether a defendant who raised the issue of self-defence was entitled to be judged on the basis of what he mistakenly believed to be the situation when that mistaken belief was brought about by self-induced intoxication by alcohol or drugs. To that issue, the court had ruled that he was not.

Guilty


Criminal Defences

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Activity

• Without even knowing the proposed reforms see if you in your teams can come up with what you think the areas of difficulty are with the law on Intoxication.

• Having done that make some suggestions for reform before we examine what the current state of play is.


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Intoxication Evaluation and Reform

• Distinction between basic and specific intent crimes

• Inconsistency in its effect

• Make sure all specific intent crimes have a basic intent alternative

• Intoxication offence

• Full defence


Criminal Defences

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Plenary

• Individually or in pairs come up with something to help them remember what has been studied. This could be a mnemonic, visual aids, a story, a song etc.

• Share your aide memoires and produce a pool of the most helpful ones.


Criminal Defences

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Objectives

• Identify the law on the general defence of intoxication

• Apply the law on intoxication to a number of problem scenarios

• Evaluate the law on intoxication with regard to its effectiveness and fairness

defences - intoxication criminal defences © the law bank criminal defences intoxication 1

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