Criminal Defences Intoxication

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?

Scenario 1 A 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. ✔

Scenario 2 At 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. ✔

Scenario 3 Having 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. ✔

Scenario 3 Before 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.) ✗

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

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 Welcome to this lecture on Intoxication.   Intoxication is one of the general defences available to a defendant and as such is relevant to all offences with varying degrees of applicability. Before we start it is worth clarifying that for the purposes of the law Intoxication includes the effects from taking alcohol, drugs and solvents. The basic premise of the defence of intoxication is that if the defendant is intoxicated, it may mean that he does not have the necessary mens rea for a crime and as such it may not be possible to find him guilty. However, public policy and a common sense of morality dictates that it would be wrong to allow intoxication as a defence. Therefore as society needs protecting intoxication can only be used as a defence to crime in limited circumstances. Generally those circumstances fall into two main categories. Firstly has the defendant chosen to drink or not i.e. is the intoxication voluntary or involuntary. Secondly is the offence one of basic or specific intent. As a brief recap the specific intent offences we study are section 18 Offences Against the Person Act 1861 (GBH with intent) and Murder. The basic intent offences are sections 47 and 20 OAPA 1861, assault, battery and involuntary manslaughter. (I will deal with the property offences in a separate lecture) and if you are unsure about specific and basic intent crimes then you should spend time listening to our short lecture on that topic. A defendant will be treated differently depending on whether or not he was voluntarily or involuntarily intoxicated and if the crime was one of basic or specific intent.

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

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 The basic rule for intoxication is that it will provide a defence to crimes of specific intent and not to those of basic intent.   The key case with respect to this is Majewski (1977). In that case during the evening of the 19th of February 1973 the defendant and his friend, Leonard Stace, who had also taken drink and drunks, went to the Bull Public House in Basildon. Stace became involved in a disturbance and glasses were broken. The landlord asked Stace to leave and escorted him to the door. As he did so Stace called out to Majewski “He’s putting me out!” Majewski got up and prevented the landlord from evicting Stace abusing the landlord as he did so. The landlord told them both to leave, both men refused and a fight broke out. Majewski was violent and abusive and spat in the landlords face. When the police came a fierce struggle took place to get him out. He shouted at the Police “You pigs, I’ll kill you all, you fucking pigs, you bastards.” The house of Lords considered the whole aspect of intoxication and came to the conclusion that self induced intoxication can only be raised as a defence to crimes of specific intent but not to crimes of basic intent. The central premise for this rationale is that basic intent crimes can be committed with reckless intent. Becoming voluntarily drunk can never be a defence for basic intent crimes as drunkenness is a reckless act and therefore liability can be constructed through the reckless drunkenness. So involuntary intoxication will always provide a defence for both basic and specific intent crimes whereas voluntary intoxication MAY be a defence for specific intent crimes but NEVER for basic intent crimes.

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

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.

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: Voluntary intoxication is quite simply where the defendant takes the drink or drugs of his own free will. That is, he was not forced to take them and knew that he was taking them.   However there can be a defence for crimes of specific intent if it can be proved that D did not have the necessary mens rea for the offence as a result of his drunkenness. If the defendant is drunk and commits a specific intent crime yet has the ability to form mens rea and therefore the intent to commit the crime he will still be liable and hence guilty. In short a drunken intent is still intent. There are some cases known as ‘Dutch courage’ cases where a person forms the mens rea before the actus reus and then gets drunk in order to give him the courage to carry out his crime. In these circumstances his intoxication will not be a defence to any crime - even to crimes that can only be committed with a specific intention. The key case for this is Attorney General for N Ireland v Gallagher 1963. In Gallagher the defendant decided to kill his wife. He went out and bought a bottle of whisky and a knife. He drank the whisky and became so drunk that he could not form the mens rea for murder (which as we all know is an intention to kill or cause really serious harm). He then killed his wife. As he had formed the intention to kill her before he became intoxicated he had no defence of intoxication.

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

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) It may be possible where a defendant has a defence of intoxication to find liability in a less serious yet similar offence thereby ensuring some form of culpability.   For many crimes there are variations that have the specific intent crime as the more serious offence with a lesser offence of basic intent. Where this is the case if the specific intent crime cannot be used then it may be possible to charge with the basic intent crime. Examples of this include basic criminal damage under section 1(1) of the Criminal Damage Act 1971 and aggravated criminal damage which is destroying or damaging property with intent to endanger life under section 1(2) of the act. The with intent to endanger life is the specific intent crime. Thus a defendant who had the actus reus and mens rea for both offences but was voluntarily intoxicated at that time might be able to show that he was so intoxicated that he could not for the specific intent of the aggravated crime and thus only be convicted of the lesser basic offence. However, not all specific intent offences have a corresponding basic intent offence – a typical example of this is theft. Technically this means in the same scenario the defendant is likely to walk free as there is no alternative charge. The key case in this rule is R v Lipman 1976. IN Lipman the defendant Lipman and the victim were drug addicts who took LSD. The dead girl had been hit on the head and suffocated. Lipman claimed he had had a bad trip and had no knowledge of the real events and had no intention of harming the girl. He was found guilty of manslaughter and this verdict was upheld by the Court of Appeal. He could not be found guilty of murder if the intention to kill or cause GBH could not be proved. He could be found guilty of constructive manslaughter which is a basic intent crime. Self induced intoxication is no defence for basic intent crime.

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

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 Involuntary intoxication is where a person does not know he was taking alcohol or an intoxicating drug. In such cases there will only be a defence if the mens rea was not formed.   There are several different circumstances where this may be possible and these include where a defendant’s drinks were spiked with alcohol or drugs such as where a drug is slipped into a soft drink or alcohol is added without the defendant’s knowledge. Or where perhaps the defendant takes drugs prescribed by his doctor in accordance with the instructions or even when the defendant takes a non dangerous drug although not prescribed to him in a non reckless way. In order for a defendant to use intoxication as a defence it must be shown that the effect of the intoxication is that the defendant was unable to form the mens rea of the offence as a result of the intoxication. The key case here is R v Kingston 1994. IN Kingston the defendant and a man named Penn were jointly indicted on a count of indecent assault on a youth aged 15. The defendant, who had paedophiliac homosexual tendencies (which he normally controlled fully), was blackmailed by two former business associates who arranged for Penn to photograph and audio tape him in a compromising situation with the boy. Sedative drugs were found in Penn’s flat when it was searched and the prosecution claimed that Penn had laced the boy’s drink. Kingston’s defence was that Penn had also laced his drink . Kingston said that he had seen the boy lying on the bed but had no recollection of any other events that night and had woken in his own home the next morning. He said he would never had committed the offence had he not been affected by the drug. The House of Lords stated that involuntary intoxication was not a defence to a charge if it was proved that the defendant had the necessary intent when the offence was committed, even though he was not to blame for the intoxication. Lord Mustill saw this case as one of disinhibition – the taking of the drug (whatever it was) lowered his ability to resist temptation so that his desires overrode his ability to control them. Intoxicated intent is still intent.

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

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) There are other circumstances where involuntary intoxication causes the law some problems.   Two of these are highlighted it he cases of R v Allen (1988) and Rv Hardie (1985). The first of these involve the circumstances where the defendant does not realize the strength of the alcohol or drug they have taken. If this is the case it does not make the intoxication involuntarily. This is still seen as voluntary as outlined in R v Allen 1988. Here the defendant was charged with buggery and indecent assault following an evening drinking in the pub and some wine given later by a friend. His claim that he did not realize the alcoholic strength of the wine that he had been given did not make the intoxication involuntary. The second is where the defendant takes a non dangerous drug which was not prescribed for him. In this instance the taking may be treated as involuntary and may provide a defence if he does so non recklessly. The circumstances in which this may occur can be seen in the complicated and important case of R v Hardie (1985). The defendant’s relationship with his wife, Mrs Hardie, had broken down and she had insisted that he must leave. He id not wish to do so, but on the morning of 2 January 1982 he packed a suitcase and about lunchtime he found two bottles of tablets in a cabinet. One contained Valium which Mrs Hardie had been prescribed in 1974. Whilst he had never taken Valium before he took one about 12 o clock to calm him down but it did not have much effect. He and Mrs Hardie had then gone shopping and he had taken two more in front of her and she had said ‘take as many as you like, they are old stock and will do you no harm.’ He took two more shortly afterwards and shortly thereafter on return to the house he had fallen into a deep sleep and could thereafter remember only odd periods for the rest of the day. It was not disputed that he must have started the fire for he was alone in the bedroom when it started. Having started it, he emerged returned to the sitting room to be with Mrs Hardie and her daughter and stayed there. Shortly afterwards Mrs Hardie heard sounds from the bedroom, went there and found smoke and flames coming from the wardrobe. There was evidence that before at the time of and after the fire the defendant was showing signs of intoxication and that such signs might have resulted from the taking of Valium some hours earlier. The court decided that this did not necessarily amount to voluntary intoxication. The jury should be directed that if they came to the conclusion that as a result of the Valium, the defendant was, at the time, unable to appreciate the risks to property and persons from his actions they should then consider whether the taking of Valium was itself reckless. The courts later decided that there was a distinction between dangerous drugs including those where it is common knowledge that the taker may become aggressive or do dangerous or unpredictable things or make the defendant incapable of appreciating risks (amphetamines and LSD being well known examples) and non dangerous drugs such as Valium. Where the drug can be said to be dangerous there may be recklessness in self administering it which would be the case when the drug was well known for causing the effects.

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

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

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.

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 It is also worth looking at how intoxication may affect other general defences.   Firstly intoxication cannot be used in insanity. However, alcoholic abuse can lead to alcoholism which can be a disease of the mind. When intoxication produces insanity as defined in the M’Naughten Rules then it is these rules that apply. As far as automatism is concerned it cannot be used if the intoxication was recklessly self induced as discussed in R v Lipman previously. IN relation to self defence and intoxication if the drunken mistake is about self defence or prevention of a crime, D will never have a defence this is detailed in R v Hatton 2005 and R v O’Grady 1987. In R v O’Grady the Defendant and a friend got drunk and fell asleep. The defendant awoke and thought that his friend was attacking him and he had to counter attack in self defence by hitting his friend with an ashtray. D went back to sleep and awoke the next morning to find his friend dead. The House of Lords held that mistake could not be allowed because it was due to voluntary intoxication. The court had to balance the interests of the defence and the law in general. D was found guilty of manslaughter This rules applies for both basic and specific intent crimes and the principle that a mistaken belief caused through D’s involuntary intoxication cannot use the defence of self-defence is now statutory and can be found in the S.75 Criminal Justice and Immigration Act 2008.

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

R v Hatton [2005] EWCA Crim 2951, CA D 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

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.

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 Finally let us look at the evaluation and reform of the law on intoxication. Firstly is the 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. Secondly there is an inconsistency in its effect As we have heard 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. So how should the la in this area be reformed? We could ensure 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. Secondly we could create an 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. Finally is the provision of a full defence. Some 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.

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.

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