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The ‘defence’ will fail if there is any evidence that the defendant was able to form any Mens Reas. - Sheehan V Moore
- A judge explained ‘a drunken intent is nevertheless intent'.
- This was as the D’s 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 grievous bodily harm.
- It was held that because they didn’t have the MR for murder, their intoxication was a defence to that offence.
- However they were found guilty of manslaughter as that is a basic intent offence.
- Where the defendant has the necessary MR despite his intoxication state, then he is
- guilty of the offence.
- The intoxication does not provide a defense.
Drunken intent is still an intent - AG for Northern Ireland v Gallagher (1963)
- D wanted to kill his wife so drunk to get the courage to do so.
- He then tried to raise the defence of intoxication because he said that at the time he committed the Actus Reus (AR) of the offence he was so drunk that he couldn’t form the MR.
- It was held that he had formed the MR before performing the AR.
- The D would be convicted if the MR was present at some point (even if it didn’t coincide with the MR).
Kingston -necessary MR?
- This is even though the D wouldn’t have committed the crime without the intoxication lowering his resistance to committing the offence.
- D coffee was drugged by someone who wanted to blackmail him.
- He was then shown a 15 year old boy who was asleep and invited to abuse him - he did
- The House of Lords (HL) upheld his conviction for indecent assault.
- The Law more for public policy (and the message it wants to give about alcohol & drugs) rather than the rights of the individual. In the case of Kingston it seems to ignore the fact that his intoxication was involuntary and against his will. He argued that he became disinhibited by the drugs (in normal non intox’d circumstances he would control these feelings). The jury/court decided that he had MR.
- D had been a diabetic for 30 years and he attacked (V) in a bar during hypoglycaemic seizure.
- It held that there is a difference between intoxication caused by alcohol and illegal drugs and intoxication cause by prescribed medication.
- However Bailey didn’t get the defence as the court decided that his conduct has been ‘reckless’ in failing to take his medication
The defence of intoxication will be available if they have had an adverse and unexpected effect on the defendant who has taken these drugs without being reckless - Hardie (1984)
- D was depressed and took some vallium tablets prescribed to his girlfriend.
- She has encouraged him stating it would calm him down.
- But it resulted in him setting fire to her wardrobe in the flat but he said he didn’t know what he was doing
D drank alcohol which was stronger than he thought but it was held that not knowing that the beverage had higher alcohol content is not involuntary intoxication it is voluntary.
- D went on a 36 hour binge on drugs and alcohol.
- He then attacked the landlord of a pub and police officer.
- The verdict of this case showed that getting drunk is a reckless course of conduct and is sufficient for MR of assault.
Majewski (1977) findings:
- The HL offered to different approaches which could be used:
- The first approach is a specific intent crime can only be committed intentionally. If the crime can be committed with some other form of MR i.e. recklessly, the offence is one of basic intent.
- The other approach is specific intent crimes are those where the requirement of MR goes beyond simply the AR.
- CA when D was charged with being ‘drunk and disorderly’.
- D tried to argued that this was a crime of ‘specific intent’ and his argument was unsurprisingly rejected as the CA held the offence is one of Strict Liability and does not require any MR.
- D had been drinking heavily with the victim and went back to the D’s flat.
- D claimed he woke up to find V hitting him so D picked up an ashtray and hit V with it and then went back to sleep.
- When he woke up the next morning he found that V was dead. D was charged with murder but was convicted of manslaughter which the CA upheld.
- D had drunk over 20 pints of beer, him and the V went back to his flat and he woke up the next morning to find the V dead from injuries from a sledgehammer.
- D said he couldn’t remember what happened but though V had hit him with a five-foot-long stick and had to defend himself.
- D was convicted of murder, the CA held that the decision in O’Grady (1987) was not limited to basic intent crime, but also applied to specific intent crimes.
Element1: Must be a complete lack/absence of MR.
- Sheehan and Moore : both tell us that intoxication has to be extreme/complete lack of MR.
- Kingston: This case shows us that if there is any evidence of MR (however slight ) intoxication will not offer any assistance.
- (AO2 This decision is highly criticised: See criticism)
- Richardson and Irwin (1999): CA said that the jury should not have judged the Def;s a reasonable sober person, but instead should have judged them as “uni students”. CA said that the jury could find Def’s guilty if they decided that they would have had the MR if sober
Element 2: Was the offence committed one of basic of specific intent? Classifying problems
- *The effect of intoxication depends on whether the offence committed was a basic or specific intent crime.
- *The courts have struggled with classifying offences in one group or the other. In Majewski the HL tried a number of different approaches to classifying but none of which have really been adopted.
- We now follow the classification decided in past cases. Some consider that those requiring purpose/intention are specific intent crimes whilst those requiring recklessness as MR are basic.
Element 2: Was the offence committed one of basic of specific intent?
- If a Def has become voluntarily intoxicated they will have a defence to a specific intent crime.
- However they are likely to be convicted of any related basic intent crime (for murder that would be manslaughter) public policy message more drunk you get, the less blameworthy you are - NOT TRUE.
- The MR of the basic intent crime is usually recklessness and the courts are of the opinion that you have satisfied the MR of any basic intent crime by (being reckless) in getting extremely intoxicated so as to not really know what you are doing.
- (AO2- It is wrong to simply convict of a basic intent crime without really considering the D’s appreciation of risk (looking into their reckless conduct)
Element 2: Was the offence committed one of basic of specific intent? Examples + AO2
- Specific: Murder, theft, S18,attempted crimes….
- Basic: Manslaughter, rape (Fotheringham), assault, battery, s47, S20 and criminal damage.
- There’s no fall back crime (related basic intent crime) for theft. Means those who commit theft (specific intent crime) whilst extremely intoxicated could (be acquitted of the specific intent crime) and walk free (no fall back basic intent crime).
- There is a problem with the distinction between basic and specific intent crimes. Ridiculous that intoxication can be available to attempted rape (all attempts are specific intent crimes, but it is not a defence to the full offence of rape (a basic intent crime)
- Vol intox will be a full defence to a specific intent crime although public policy means that the fall back position of convicting you of a lesser basic intent crime will be adopted
- Vol intox is never a defence to a basic intent crime (Majewski). The courts feel that you have been sufficiently reckless in getting that intoxicated and should not go free/be blameless.
- If not sure about how strong alcohol is- its still voluntary intox and intox offers you no help at all.
- If Def becomes intoxicated voluntarily and then is spiked too (as happened in the jury must decide if the intox was voluntary or not.)
- Covers situations where a person is spiked/laced etc or where prescription or soporific (sedatives) have an unexpected reaction on them.
- Involuntary intox is usually complete defence to all basic and specific intent crimes ( *provided there is a complete absence of MR)
- Kingston: AO2 Comment harsh result/fair/unfair: Jury putting self in mind of def- is that the realms of fantasy?)
- Hardie: (AO2-why should he get the defence when he took drugs which were not prescribed for him).
- Bailey (1983): showed those who become intoxicated from prescription drugs will only be able to have the defence if they had not been reckless in becoming intoxicated
- This is the situation where a D drinks to summons the courage to commit an offence.
- In this situation the D’s voluntary intox will offer them no help/defence to any crime- neither specific or basic.
- AG for NI v Gallagher
- Ordinary Mistakes (without intoxication)- A genuine honest mistake (even if its unreasonable) about a fact (which if true would mean that D did not have MR) give D a full defence (walk free) for any crime.
- DPP v Morgan - this case the court confirmed that a genuine mistake about a fact, if honestly held by D (however unreasonable) is a full defence.
- Intoxicated Mistakes- generally-If the mistakes is due to voluntary intox, the rules for intoxication will apply – D will have a defence to a specific intent crime but will be convicted of the related basic intent offence/ fall back position.
Intoxicated Mistakes About The Amount of Force Required in Self Defence
- In this situation the defendant who is intoxicated (extremely, no MR etc) makes a mistake about how much force is needed in self defence and uses too much.
- The courts are quite harsh in this situation. The courts will not allow intoxication (nor self defence as too much force has been used) as any form of defence to either the basic or specific crime.
- Hatton (2005) and O’Grady (1987)
The Rules on Intox’n in Other Jurisdictions (Countries)
- Canada: same basic and specific intent distinction made except intox is a full defence to a basic intent crime if D was so intoxicated could be in an automotive state (Daviault(1995)AO2- should we have that here?
- Australia, New Zealand and South Africa: Intox’n where Def is incapable of forming MR is a full defence (walk free for all crimes) in each of these countries (AO2 Public policy will not allow that in England and Wales)
- Reform of intoxication has been a hotly debated topic for many years now.
- 1993- Law Commission produced a consultation paper where it was strongly critical of the law and suggested getting rid of the Majewski rules, but by the time it produced its final report in 1995 it said that the rules on intoxication were satisfactory.
- Proposals for reform over the yrs include: adopting the Australian approach where extreme intox (+absence of MR) is a complete defence to all crimes (would not be popular here!!!), creating an offence of dangerous intox and creating a special verdict which would only take intox into account when sentencing.
Recent Proposals for Reform
- 2009 Law Commission Paper “Intoxication and Criminal Liability”. The proposals are quite complex but they include:
- (1) Getting rid of the distinction between basic and specific intent.
- (2) Involuntary intox would include those who drank under duress (a new thing)
- (3) Those who take soporific drugs (not on medical advice (like Hardie) will not get the defence of involuntary intoxication.
Intoxication and other defences
- 1. Intoxication + Insanity = the insanity rules apply Davis (1881) (D claimed drinking caused delirium tremens. D said correct defence is insanity-not guilty by reason of insanity
- Intoxication+ automatism = If voluntarily intoxicated the rules of intox and not automatism apply (Lipman). Bailey applies too
- It is harsh to convict someone who is voluntary intoxicated of a basic intent crime as it doesn’t take account of the fact that the Def has no idea when he becomes intoxicated that he/she will commit a crime. It ignores the usual requirement that MR and AR should coincide and simply saying that someone has to be reckless (simply in getting that intoxicated) seems wrong as the courts should really explore the appreciation of risk.
- The law on intoxication fails to take account of the defendant’s attitude to intoxication ;- the law does not distinguish between those people who set out to lose control and those who go out socially but end up inadvertently very drunk.
- We are asking juries to go into the realms of fantasy by expecting them to decide what the defendant would have thought/done if they had not been intoxicated.
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