Intoxication
• Intoxication is a common law offence
• Judges have discretion in applying the defence. However, the problem is that their judgments and opinions may
differ, which is an inherent problem in this defence.
• The law on intoxication is heavily based on public policy reasoning.
o Lord Salmon in DPP v Majewski explained that the decision was not based on logic, but on ‘justice, ethics
and common sense.
• Intoxication not a defence for strict liability and drunk driving offences.
General principles on the current law of intoxication:
1. A defendant who is voluntary or involuntary intoxicated but has the mens rea required for the offence is guilty.
2. A defendant is involuntarily intoxicated but lacks the mens rea required for the offence must be acquitted.
a. She should be acquitted because of the lack of mens rea and not because of the intoxication itself.
3. A defendant who is voluntarily intoxicated but lacks the mens rea for the offence, the law will deem the
defendant as reckless, but the defendant will be acquitted of an offence requiring intention.
a. Doesn’t this seem like the law is punishing the defendant for the state of intoxication itself, rather than
the actual offence committed?
4. For a crime of Dutch-courage, it does not provide a defendant a defence (AG for Northern Ireland v Gallagher)
even if the defendant lacked the mens rea
Lord Denning – states that “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 a charge of murder, nor even reducing it to manslaughter”
5. Voluntary intoxication is a good defence for specific intent crimes, but not basic intent crimes where the state of
intoxication would provide evidence that they had the necessary mens rea.
Difference between voluntary and involuntary intoxication:
- Voluntary intoxication: where the defendant is aware of the substances that he/she is consuming. These can be
alcohol or drugs, I which he or she knows or ought to know are intoxicating // the defendant is more
blameworthy under this defence
- Involuntary intoxication: where the defendant is unaware of the substances taken, for example, a spiked drink
Voluntary intoxication
• A defendant intending to rely on this defence is attempting to assert that he had no state of mind or the relevant
mens rea to commit the unlawful act because of his intoxicated state → he is therefore negating the mens rea of
the offence of specific intent crimes, and will therefore be not guilty.
• In crimes of basic intent, the fact that they were intoxicated when they committed the crime will provide the
evidence that they had the necessary mens rea
o This was explained by Lord Elwyn Jones LC in DPP v Majewsk [1977], where he states if a “man of his
own volition takes a substance which causes him to cast off the restraints of reason and conscience”, the law
finds it appropriate to find that it supplies the evidence of mens rea of a basic intent crime.
▪ Provides only a partial defence to specific intent crimes → D would’ve failed to have the necessary intention, and
is therefore automatically presumed reckless.
o This has the effect of negating the mens rea, but the defendant would be charged for a basic intent
crime → the conviction of murder will be downgraded to a manslaughter one.
o R v Lipman – where the defendant had went on an ‘acid trip’, and suffocated his girlfriend with clothes
as he was hallucinating she was a snake.
• DPP v Majewski, Lord Salmon – the defence of intoxication is only available to crimes of specific intent, and not
basic intent // this affirms DPP v Beard
• R v Groark [1999]; R v Sheehan and Moor – a drunken intent is still an intent
• Applies even if the defendant voluntary consumed alcohol, but underestimated the amount he was consuming –
Allen (1988)
• The defendant bears the evidential burden of proof to show that his intoxicated state was so high that he did
not have the mens rea – Sooklal (1999)
Involuntary intoxication
• A defendant intending to rely that he was involuntary intoxicated will need to introduce evidence to show that
he lacked the mens rea of the crime.
• If the jury finds that he had the mens rea, they would be guilty of the crime. If they did not, they are not guilty.
• This includes where medicines are prescribed by doctors, or also known as soporific drugs, where through no
fault of their own the defendant experiences adverse medical effects of prescription drugs.
o R v Hardie – the defendant took valium pills, and caused fire. He was subsequently charged for
criminal damage. The defendant was held to be not reckless.
▪ Jury direction:
• Involuntary intoxication is a defence for all offences, and this includes basic intent offences, where involuntary
intoxication provides evidence to the prosecution whether they had the necessary mens rea for committing the
offence.
• Defendant here is less blameworthy
• However, just because you are involuntary intoxicated, the defence is not always readily available to be relied
on.
o R v Kingston - defendant claimed he was involuntary intoxicated due to his business partner
slipping a drug in his coffee. Both of them had raped a 15y/o boy, but the defendant claimed
that he had no recollection of anything and maintained that he couldn’t have had the mens rea
because he was involuntarily intoxicated.
o House of Lords: intoxicated intent is still intent – the defendant was not able to rely on the defence
of involuntary intoxication. This seemed more akin to the blameworthiness of the defendant, and a
regard for public safety rather than a logical criminal law principle in the name of due
administration of justice.
Criticisms regarding the law on intoxication:
1. No proper definition of specific intent and basic intent crimes
2. No coincidence of actus reus and mens rea – goes against the fundamental principles of criminal law
a. This goes against the Contemporaneity rule, where the actus reus must be contemporaneous to the mens
rea of an offence.
b. This was considered in the case of Thabo Meli ,where the Privy Council held that there was a coincidence
of AR and MR, and act of rolling the body off the cliff after striking the victim in the head all amounted
to a single transaction.
c. The defendant’s act of taking drugs and drinking to a condition that amounts to him ‘casting off the
restraint of reason and conscience’ means that the defendant is reckless. When in reality, there could
be circumstances where the defendant could be reckless first, and then goes on to commit the actus reus
of the offence.
d. E.g. D consumes a lot of alcohol, and becomes drunk → in law, this means that the defendant would’ve
automatically been presumed as reckless, as they ‘run the risk of behaving in an unpredictable way’
(Jonathan Herring, 7th ed.). He then goes on to punch someone, while being intoxicated. This could
amount t an offence under Section 47 OAPA, which is a basic intent crime.
i. The issue here, is that there would be no coincidence of actus reus and mens rea, as the state
of recklessness came first, before the actus reus of the offence.
3. Presumption of ‘recklessness’
a. A defendant who is voluntary intoxicated is deemed to be automatically reckless, as they are aware
that when taking alcohol or drugs, they run the risk that hey behave in an unpredictable way.
b. Ormerod described this as “prior fault”.
c. Goes against Section 8 of the Criminal Justice Act 1967 – where it requires the jury to consider all
evidence before deciding whether the accused foresaw a result.
d. Normally in offences requiring recklessness, it is necessary to show that the defendant foresaw a specific
kind of harm
e. This also goes against the ‘presumption of innocence’, where no man can be guilty of an offence until
proven otherwise. DPP v Majewski violates this principle by imposing liability for a basic intent crime (as
intoxication provides evidence for mens rea in basic intent offences). In this regard, their recklessness is
presumed.
f. This proves to be difficult and unconvincing, especially in cases where the defendant has never drunk
alcohol before and therefore unaware of its potential effects.
4. No strict definition between what is specific and basic intent crime.
a. Smith and Hogan – ‘The problem lies in identifying a way of distinguishing crimes of basic and specific
intent.
b. DPP v Beard, Lord Birkenhead – where a crime of specific intent is essential in the offence, the state of
drunkenness which renders the accused incapable of forming such an intent should be taken into
consideration to determine whether he has the necessary intent for the particular crime. This was also
seen in Majewski.
c. Parliament never intervened
d. Lord Salmon said the courts are developing this distinction “through common law rather than strict logic”.
e. Gives rise to the discussion of whether this is a valid rule – because it can be seen the courts are taking
the law making power into their own hands and going against the declaratory theory in the interest of
upholding public policy // the role of the judiciary cannot be seen to be an usurpation into the functions
of the legislature, where Parliament only is in the right position to make such laws, and the judiciary has
to uphold these laws.
Where the defence cannot rely on the defence of intoxication:
- Self-induced intoxication does not afford a defence of automatism
o R v Bailey – where the defence failed on automatism caused by hypoglycaemia.
- Dutch courage cases
- If a mistake is induced by intoxication // especially a basic intent crime, no defence is afforded.
- Mistake of necessary self-defence // Lord Lane in O’Grady stated this was largely because of public policy
reasoning.
- Rape is a crime of negligence since it requires any belief in consent to be reasonable. As the defendant
formed his belief that the victim was consenting while he was intoxicated, that belief cannot be relied upon –
R v Fotheringham [1989]
Reforms/ Proposed reforms
Rebecca Williams in “Voluntary Intoxication – A lost cause?” highlighted some of the difficulties of reforming the law.
- She recognises that a choice must be made between justice and simplicity. If one on hand of the balance,
more varying degrees of culpability the law is able to represent, the more accurately it would justly convict
the defendant of the crime he is liable to.
- However, having such varying degrees of culpability produces a complex environment for both the juries
and the courts to understand and operate in. Furthermore, it would take longer for juries to fully
understand such levels of culpability, and thus produces a counter-intuitive expectation of the jury where
they are required to reach a unanimous verdict based on precise and simple directions of the trial judge.
1. The Law Commission Report “Intoxication and Criminal Liability” No 314 (2009) – suggested that the law in
Majewski should be codified.
a. However, this is rejected on the basis that the absurdity is not more entrenched in law, and that the
absurdity will continue to persist.
2. The Law Commission also suggested the abolishment of the distinction in Majewski and replacing it with a new
offence of causing harm whilst intoxicated.
a. Graham Virgo in “Reconciling Principle and Policy” argues that such a criminalisation of such an act would
be deterrence, and may assist defendants from being a habitual drunkard. However, such a
paternalistic approach enforced by the courts suggest that they may be intervening into an
individual’s way of living, and may not be upholding an individual’s autonomy.
3. Rebecca Williams in “Voluntary Intoxication – A lost cause?” – suggest that there should be an offence of
“committing the [actus reus of offence X] while intoxicated” // less invasive approach, while maintaining the
rights of defendants to have all evidence considered. This also seem to advocate J.S Mill’s Harm Principle =
actions of individuals should only be limited to prevent harm to other individuals. AS D’s action while intoxicated
have caused the unlawful act, it is therefore from this view justifiable to finish.
