Topic 10

1. Topic 10 Intoxication

2. Introduction • A defendant can become intoxicated by means of alcohol or drugs or both together. The essence of the defence is that the defendant was so intoxicated that he or she was incapable of forming the mens rea of the offence that he or she is charged with. • The defendant who gets drunk or takes drugs and then does something that he or she would not otherwise have done will not be able to rely on the defence. • Since the effect of the intoxication must be to render the defendant incapable of anticipating any of the consequences of his or her actions, the defence will only apply in very limited circumstances where the effect of the intoxication was extreme.

3. Elements • Absence of mens rea • The defendant must show that the alcohol, drugs or a combination of the two made him or her incapable of forming the mens rea of the relevant offence. If, despite his or her intoxicated state, the defendant was still able to form the necessary mens rea, the defence will not apply.

4. Voluntary intoxication The courts draw a distinction between voluntary and involuntary intoxication. Voluntary intoxication applies to the defendant who has voluntarily consumed alcohol or drugs commonly known to make people aggressive or out of control. ‘Dutch courage’ If someone deliberately gets intoxicated to give himself or herself ‘Dutch courage’ to commit a crime, his or her intoxication will not be a defence to any crime – even to crimes that can only be committed with a specific intention.

5. Involuntary intoxication • A defendant may be classed as being involuntarily intoxicated. This can arise in a number of different situations: • The defendant was ‘spiked’ without his or her knowledge, and was therefore unaware that he or she was consuming drugs or alcohol. • The defendant took prescription drugs. • The defendant had an unexpected reaction to soporific drugs.

6. Specific intent crimes • Generally, a crime of specific intent is one where the mens rea is intention only. Examples of specific intent crimes are: • murder • s.18 Offences Against the Person Act 1861 • theft • robbery • burglary • Voluntary and involuntary intoxication both provide a defence to specific intent crimes.

7. Basic intent crimes (1) • With basic intent crimes, the mens rea can include recklessness. Examples of basic intent crimes include: • involuntary manslaughter • s.20 Offences Against the Person Act 1861 • s.47 Offences Against the Person Act 1861 • assault • battery • If the defendant is voluntarily intoxicated, he or she will not have a defence to a crime of specific intent if he or she has been reckless. Involuntary intoxication, on the other hand, will provide a defence to basic intent crimes.

8. Basic intent crimes (2) For most offences of specific intent, there is a similar basic intent crime. For example, if the defendant is charged with murder and pleads intoxication, he or she may be charged with the basic intent crime of manslaughter instead. If the defendant is not guilty of s.18 due to voluntary intoxication, he or she may be guilty of s.20 instead. However, not all specific intent offences have a corresponding basic intent crime, and in these cases, intoxication can be a complete defence. An example of such an offence is theft.

9. Burden and standard of proof • The burden of proof rests with the defendant. He or she must provide some evidence of intoxication before the defence can be put before the jury. It is then up to the prosecution to prove beyond reasonable doubt, that despite this evidence, the defendant still formed the necessary mens rea.

10. Effect • The effect of intoxication varies according to the type of crime that the defendant is charged with and whether the defendant was voluntarily or involuntarily intoxicated. • If the defendant was voluntarily intoxicated and incapable of forming mens rea, he or she has a defence to specific intent crimes but not crimes of basic intent. If the defendant is charged with a specific intent crime, which does not have a corresponding basic intent crime, e.g. theft, intoxication can provide a complete defence. • If the defendant is involuntarily intoxicated and incapable of forming mens rea, he or she will have a defence to both basic and specific intent crimes.

11. Evaluation (1) Distinction between basic and specific intent crimes It is difficult to know for certain which offences the courts will class as specific intent crimes and which they will class as basic intent crimes. Critics argue that the distinction should be abandoned and the matter left in the hands of the jury in each case. Others argue that since the defendant was unable to form mens rea, he or she should not be held criminally liable at all. However, policy issues would probably prevent this from ever happening.

12. Evaluation (2) Inconsistency in its effect Some specific intent crimes, such as theft, do not have a corresponding basic intent crime. Intoxication therefore operates as a complete defence to those crimes. However, for specific intent crimes that do have a corresponding basic intent offence, the defendant will be convicted. For example, if the defendant is charged with theft but successfully pleads intoxication, he or she will be acquitted, as there is no corresponding basic intent crime with which he or she can be charged. If a defendant is charged with murder, however, and successfully pleads intoxication, he or she will be convicted of manslaughter instead. Furthermore, there is no logical reason why some crimes have a corresponding offence while others do not.

13. Reform (1) Ensuring that all specific intent crimes have a corresponding basic intent offence It has been suggested that the current distinction between basic and specific offences be maintained, as long as all crimes of specific intent are given a corresponding basic intent crime.

14. Reform (2) Intoxication offence The Butler Committee suggested that the current law should be replaced with a new offence of ‘dangerous intoxication’. Juries could then find a defendant guilty of ‘dangerous intoxication’ rather than the offence committed. A maximum penalty of 1 year was suggested for a first offence, rising to 3 years for any further convictions.

15. Reform (3) Full defence Critics have argued that since the defendant was incapable of forming mens rea, legal principle dictates that he or she should be acquitted. This would mean that intoxication would operate as a complete defence to any crime. This is the position in Australia, but policy considerations mean that the approach is unlikely to be followed in the UK.