Intoxication

1. Intoxication A defence where the defendant has consumed alcohol, drugs or other substances.

2. Intoxication • Intoxication is a means of putting doubt into the minds of the magistrates or jury as to whether D formed the necessary mens rea. • It is governed by case law. • It usually involves alcohol, but can apply to any case where D has consumed a substance (or cocktail of substances) which is capable of affecting D’s ability to intend or foresee the consequences of his actions. • If, despite the intoxication, D forms the necessary Mens Rea for the crime in question then the defence is not available.

3. The Rules • Intoxication is no defence if, despite the intoxication,D formed the Mens Rea; • Where D was involuntarily intoxicated and failed to form the Mens Rea, D is entitled to be acquitted; • Where D was voluntarily intoxicated and failed to form the Mens Rea, D is entitled to be acquitted if the offence charged is one of specific intent. If the offence charged is one of basic intent then the jury must consider whether D would have formed Mens Rea had he been sober.

4. Intoxication is no defence if D still formed the Mens Rea for the crime “The mere fact that D’s mind was affected by drink so that he acted in a way in which he would not have done had he been sober does not assist him at all, provided that the necessary intention was there. A drunken intent is nevertheless an intent.” COA in: R v Sheehan (1975)

5. Involuntary Intoxication • Involuntary intoxication covers situations where D did not know he was taking an intoxicating substance (spiked; prescribed drugs have an unexpected effect). • The mere fact that D’s alcoholic drink has a stronger effect than necessary does not render the intoxication involuntary: R v Allen (1988) • If D was involuntarily intoxicated such that the prosecution cannot prove the Mens Rea, then D is entitled to an acquittal. • If D was involuntarily intoxicated but did have the Mens Rea when he committed the offence, he will be guilty. The involuntary intoxication will not provide a defence. This is so even though D would not have committed the offence without the intoxication lowering his resistance to committing the offence.

6. R v Kingston (1994) D was a middle-aged businessman. He had admitted paedophilic, homosexual tendencies, which he was able to control whilst sober. This presented an opportunity for former business associates of his to blackmail him. As part of the set-up, both D and the a 15-year-old boy were lured, separately to a flat and drugged (drugs put in their coffee). The boy fell asleep and D was invited to abuse him. D did so and was photographed by the blackmailer. In the prosecution’s view there was evidence that D, despite the effects of the drugs, intended to touch the boy in circumstances of indecency and the jury agreed. The HOL upheld his conviction for indecent assault. They held that if D had formed the Mens Rea for an offence then the involuntary intoxication was not a defence.

7. R v Hardie (1985) Dwas depressed after breaking up with his girlfriend. Whilst packing his bags to leave, he took some of the victim’s prescription valium tablets from the medicine cabinet, believing that they would calm him down. Shortly after, he started a fire in the wardrobe. D’s defence was that he did not know what he was doing because of the valium. The jury convicted of arson after being directed to ignore the effects of the valium. However, COA quashed D’s conviction as D had taken the drug because he thought it would calm him down. (This is the normal effect of valium). So D was not reckless.

8. Voluntary Intoxication • This is where D has chosen to take an intoxicating substance. • Whether D is guilty depends upon whether the crime is one of specific or basic intent.

9. Voluntary intoxication can negate the Mens Rea for a specific intent offence. If D is so intoxicated that he has not formed the Mens Rea for the offence he is not guilty. Voluntary intoxication & specific intent offences DPP v Beard (1920) D had been charged with murder but argued that he was too intoxicated to have formed the Mens Rea for murder. Lord Birkenhead stated the rule which still applies today: “If he was so drunk that he was incapable of forming the intent required, he could not be convicted of a crime which was committed only if the intent was proved.”

10. R v Sheehan and Moore (1975) Two D were very drunk when they threw petrol over a tramp and set fire to him. They were too drunk to have formed any intent to kill or cause GBH (the Mens Rea for murder). It was held that because they did not have the Mens Rea for murder their intoxication was a defence to that offence. However, they were found guilty of manslaughter as that is a basic intent offence.

11. Please read the case of R v Heard 2007 for a more recent case regarding the difficulties of simply labelling offences either basic or specific!

12. Where D has the necessary Mens Rea despite his intoxicated state, then he is guilty of the offence. The intoxication does not provide a defence. AG for Northern Ireland v Gallagher (1963) D decided to kill his wife. He bought a knife to do the killing and also a bottle of whisky. He drank a large amount of the whisky before killing his wife. D's conviction for murder was upheld – a drunken intent is still an intent.

13. Dutch Courage “If a man, whilst sane and sober, forms an intention to kill and makes preparation for it knowing it is a wrong thing to do, and then gets himself drunk so as to give himself Dutch courage to do the killing, and whilst drunk carries out his intention, he cannot rely on this self-induced drunkenness as a defence to murder, not even as reducing it to manslaughter. He cannot say he got himself into such a stupid state that he was incapable of an intent to kill…The wickedness of his mind before he got drunk is enough to condemn him, coupled with the act which he intended to do and did do.” Per Lord Denning in Gallagher

14. Voluntary intoxication & basic intent offences • 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 & recklessness is enough to constitute the necessary MR for crimes of basic intent. DPP v Majewski (1977) D had taken both alcohol and drugs. In a very intoxicated state he then attacked people in a pub and also the police officers who were trying to arrest him. He was convicted of three offences of assault occasioning ABH and three of assaulting a police officer in the execution of his duty. The HOL upheld all these convictions. 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.”

15. Drunken Mistake • If D is mistaken about a key fact because he is drunk, then it depends on what the mistake was about as to whether he has a defence or not. • Where the mistake is about something which means that D did not have the Mens Rea for the offence then for a specific intent offence he has a defence. • However, where the offence is one of basic intent then D has not got a defence.

16. R v Lipman (1970) D and his girlfriend had taken the drug LSD before falling asleep at her flat. LSD causes hallucinations. D thought that he was at the centre of the earth and being attacked by snakes. When he awoke he found his girlfriend was dead. He had strangled her and stuffed a sheet into her mouth believing she was a snake attacking him. His conviction for manslaughter was upheld. D did not have the specific intention for murder as he thought he was killing a snake. However, he was guilty of manslaughter because he had voluntarily taken the drug LSD. This was a reckless course of conduct and so he was guilty of manslaughter.

17. R v O’Grady (1987) D and the victim, who was a friend, had been drinking heavily, they fell asleep in D’s flat. D claimed that he awoke to find the victim hitting him. D picked up a glass ashtray and hit the victim with it, D then went back to sleep. When he woke he found that the victim was dead. D was charged with murder but was convicted of manslaughter. This was upheld by CA.

18. R v Hatton (2005) D had drunk over 20 pints of beer. He and the victim (another man) went back to D’s flat. In the morning D claimed he found the victim dead from injuries caused by a sledgehammer. D said he couldn’t really remember what had happened but thought the victim had hit him with a 5 foot long stick and he had defended the attack. D was convicted of murder. CA held that a drunken mistake about the amount of force required in self-defence was not a defence.