#3596 - Intoxication - Criminal Law

• Intoxicated defendants cause difficulties for the criminal law. Sometimes intoxication is included as a capacity defence, but intoxication really is not a defence at all:

  • This issue is one of intent. The general maxim is that drunken intent is still intent, even if D would not have intended such an act/consequence if he were sober. HOWEVER, intoxication may begin to resemble a defence where D claims that he was so drunk so at to have been unable to form intent.

  • Drunken MR is still MR. If there is no MR at all, there can be no crime.

  • LEADING CASE: Kingston: D was a paedophile who always resisted his urges. He was drugged and led to a bedroom where a young boy who had also been drugged was. He sexually assaulted the boy and the incident was filmed. Despite being involuntarily intoxicated, he was still found guilty, because he possessed the guilty mind of a child molester – the fact he was disinhibited did not make him less culpable. Lord Marshall gave his ruling ‘regretfully’ but he said it was not the place of the court to implement such a regime.

Basic/specific intent:

• For purposes of intoxication liability, crimes are split into crimes of basic intent and crimes of specific intent. The leading case on this:

  • DPP v Majewski – D assaulted various people while voluntarily intoxicated. He pled intoxication as a defence. It was found that he could not rely on the defence because assault was a crime of basic intent. It established the Majewski rule – where a crime is one of basic intent, being voluntarily intoxicated will be taken as proof of MR/intent.

The distinction:

• If a crime is one of specific intent, it’s MR extends beyond its AR. For most offences, MR is intention or recklessness as to the AR.

• The distinction is very difficult to draw – as a general rule, crimes of specific intent cannot be committed recklessly, because they require a mental element as to circumstance or consequence that extends beyond the mere conduct element.

• You really just need to learn the list (non-exhaustive):

  • Specific: murder, wounding, GBH with intent, theft, burglary, handling stolen goods.

  • Basic: most other offence (notably, includes rape).

• Leading case on the distinction:

  • Heard – D took his penis out of his trousers and rubbed it against a police officer’s leg. He was charged with a s.3 offence under the Sexual Offences Act 2003. He claimed that he had to intend the sexual nature of the touching, and because he did not he could rely on intoxication as a defence. LJ Hughes said he struggled to conceive of recklessly committing sexual touching. He also said that there was no concrete rule for the difference between basic and specific intent offences.

• NOTE: a jury may decide that the intoxication defence will be available if D would not have foreseen the consequences of his actions even if he had been sober. This is established in Richardson and Irwin, affirmed in Brady.

Rationale for the distinction:

• Difficult to tell. Many have called for it to be abolished. But there may be justification on the basis that if you become drunk by volition you should be responsible for any ensuing actions, but there needs to be a line drawn.

• May be problems with the fact that it essentially brands drunkenness as indicative of a guilty mind.

Voluntary/involuntary distinction:

• The courts are much more sympathetic to those who are involuntarily intoxicated. Note that Kingston doesn’t quite fit here because he had the guilty mind prior to becoming intoxicated. Generally the involuntarily intoxicated will have a defence. Sometimes it will not be entirely obvious:

  • Allen – D made his own alcohol, which was much stronger than he realised. He was charged with drink driving and pled involuntary intoxication. This argument was rejected – he knew that he was drinking alcohol, it did not matter that it was stronger than he realised.

• Note that where D drinks in order...