For hundreds of years, it has been assumed that individuals behave more aggressively while under the influence of alcohol. Alcohol related crimes cost the UK taxpayer £1.8 billion on average per year . However, society has taken an ambivalent attitude towards intoxication. Alcohol consumption is generally depicted as a puritanical moral barrier used to escape pain and the harsh realities of life. Intoxication can conversely be portrayed as a sign of weakness, impeding human reasoning leading individuals to behave in an unacceptable manner.
Does this lack of consistency in society’s opinion reflect the clarity of the law as regards to when intoxication can be a defence?
Drunkenness was a crime punishable by imprisonment in the form of stocks or a fine from 1607 to 1828. The law in this area concentrates on whether the accused who committed the prohibited act, has the necessary mens rea due to voluntary or involuntary intoxication. There are two extreme approaches that the law could follow on intoxication; the strict subjective theory emphasizes the defendant lacked the required mens rea and supports the idea of absolute acquittal from liability.
The absolutist policy theory highlights the importance of public protection and endorses punishment.
This arena consisting of the two aforementioned principles have created a tangled web that leaves numerous questions unanswered. The law has tried to achieve an intermediate compromise, rejecting both theorems in favor of adopting different strategies for each criminal offence. An initial distinction has to be drawn between being drunk and being intoxicated. It was expressed in R v Sheehan and Moore that ‘a drunken intent is nevertheless an intent.’ A drunken individual would not be able to use the defence of intoxication, as he is still capable of forming the necessary mens rea. The case of R v Stubbs stated that intoxication needed to be ‘very extreme’ as it is impossible to form the mens rea due to the effect of copious amounts of alcohol.
This essay will investigate the situations when intoxication can be used as a defence, analyzing the decision in R v Majewski and its impact on the specific and basic intent dichotomy. The Law Commission has taken a ‘stripped-down approach’ attempting to codify the main principles of the common law regarding voluntary and involuntary intoxication. There is an opinion that ‘there is much in the Report to commend it’ but others have drawn attention to the production of ‘head scratching provisions’ leading some to question whether intoxication should be called a defence at all. The Scottish Law Commission have recognized the difficulty in reforming the law and have stated ‘intoxication as a complete defence in all circumstances would be extremely serious.’ To what extent is intoxication used as a defence in criminal law and should the legal boundaries be clearer?
Voluntary intoxication is defined in the Butler Committee Report as ‘the intentional taking of drink or a drug knowing that it is capable in sufficient quantity of having an intoxicating effect.’ In reality, the law does not support the stringency of this explanation. The main rationale is that the intoxicant must be able to impair the defendant’s rationality and human reasoning abilities. In the case of R v Hardie, the question of whether valium could be classed as an intoxicant arose. The defence was that the valium was only administered for relaxant purposes and according to Lord Parker, ‘there was no evidence that it was known that the appellant could render a person aggressive.’ Does this mean the court has to decide whether a substance is an intoxicant individually for each case? The Law Commission believes this approach is overall inadequate.
The law in England and Wales presumes that intoxication is voluntary unless evidence is produced that allows the court or jury to conclude that it was involuntary. Recent government proposals refrain from attaching a definition to ‘voluntary intoxication,’ preventing the creation of a narrow approach developing. Consequently, voluntary intoxication is not a defence in the law but it can become a mitigating factor and be considered as a “partial excuse” reducing the echelon of criminal liability. This area has caused serious problems in English criminal law, as it is fraught with ambiguity and uncertainty.
How should the law decide the effect voluntary intoxication has on the defendant’s liability? The effect of voluntary intoxication on the mens rea of criminal acts is often comprised of the defendant foreseeing the consequences or intending their occurrence. The strict subjective theory emphasizes that intoxication will always be relevant to the outcome of the case but the absolutist policy theory allows the possibility to escape liability completely. Each theorem supports contrasting trains of thought and makes the options for reform more unenviable and unclear. In an attempt to reach a ‘compromise’ and stabilize the theoretical problems and public policy issues involved, the law has categorized criminal offences into two groups; specific and basic intent offences. Despite the broad scope for divergence, the Law Commission has approved the common law’s implementation of this “midway course” distinction.
Specific and Basic Intent Dichotomy
‘All people have the right to a family, community and working life protected from accidents, violence and other negative consequences of alcohol consumption.’ The essence of the law in England and Wales is not dissimilar to this aim in that intoxication can provide a defence to crimes that are of specific intent, but not to those that are of basic intent. The House of Lords in the leading case of Majewski depicted this approach, which has been dubbed a ‘dichotomy.’ They declared it must be proved in specific offences that the defendant lacked the necessary mens rea at the time of the offence. It is for the prosecution to establish the actual intent of the defendant, taking into account the fact that he was intoxicated. In crimes of basic intent, the actuality that intoxication was self-induced provides the necessary mens rea. The original distinction between crimes of specific and basic intent initially appeared to be clear: the courts did not want a defendant to escape liability for his crimes caused during his intoxication. In practice, the distinction is difficult to ascertain and has created incongruity in the law. The courts also desired the dichotomy to be flexible allowing partial defences and mitigation in some cases.
Simester argues this similarity is ill founded, as ‘intoxication is a doctrine of inculpation…and work in opposite directions.’ Simester’s view regarding the dichotomy is persuasive but I believe clarification is needed before the law can be deemed acceptable. Lord Simon developed another analysis where ‘the prosecution must in general prove that the purpose for the commission of the act extends to the intent expressed or implied in the definition of the crime.’ Another approach put forward was the ‘ulterior intent test,’ which was more widely accepted. This supports the idea that in specific intent crimes, the mens rea extends beyond the actus reus and in basic intent crimes, the mens rea goes no further than the constituents in the actus reus. However, the most prevalent explanation, the “recklessness test,” which was given by Lord Elwyn-Jones and later approved in the House of Lord’s decision in the case of R v Caldwell. An individual is Caldwell-type reckless if the risk is obvious to an ordinary prudent person who has not given thought to the possibility of there being any such risk, or if the individual has recognized that there is some risk and has nevertheless persisted in his actions.
This test states intoxication can only be relevant to crimes that require proof of intention and it is immaterial to crimes that are committed recklessly. Lord Diplock took the objective view that classification of offences into basic or specific intent was irrelevant where “recklessness” was satisfactory to form the mens rea. However, the distinction between the varying offences is important if the intoxicated person who is charged with an offence of basic intent has thought about a possible risk and wrongly concluded it to be negligible. In this case, there is a lacuna in the “recklessness test.” The defendant would be acquitted unless convicted under the Majewski ruling on the basis that the actus reus of an offence of basic intent has been committed. Lord Edmund-Davis dissented arguing ‘however grave the crime charged, if recklessness can constitute its mens rea the fact that it was committed in drink can afford no defence.’
Is this too harsh to adhere to the justice proclaimed in the English legal system? The case of R v Heard, the Court of Appeal rejected the recklessness test in favor of the “purposive intent” and “ulterior intent” test. The judgment contains vast amounts of ambiguity with the difficulty of ‘fitting an offence into a single pigeon hole.’ The “recklessness” test was finally confirmed in the 1980 Criminal Law Revision Committee Report and provided an ample explanation for voluntary intoxication. The offence of rape provides a good illustration of the difficulties involved in the “recklessness” test. The case of R v Fotheringham concerned the rape of a 14-year-old girl by an intoxicated husband who mistakenly underwent sexual intercourse in the belief that the girl was his wife.
The offence of rape at that time could be committed recklessly but this has been altered to the principle of ‘reasonable belief.’ The court had to decide whether the defendant had an intention to carry out unlawful sexual intercourse or whether recklessness was sufficient for conviction. Public policy of protection triumphed over the strict subjective theory where intoxication would prevent liability and defined rape as a basic intent offence. The recent case of R v Rowbotham (William) concerning the offences of murder, arson with intent to endanger life and burglary were invalidated where defence expert evidence showed the defendant’s mental abnormalities combined with extreme intoxication had prevented him from forming the specific intent necessary. This case illustrates the dichotomy is still used by courts today despite aspirations for reform.
The courts have taken a moderate approach to defendants who have become intoxicated through no fault of their own. The most common cases of involuntary intoxication involve intoxication that is unknowingly induced by a third party. The main principle is that a defendant will not be held liable for any crimes they carried out while involuntary intoxicated. Their transparency and lack of knowledge shields their ability to form the necessary mens rea. This is not a “blanket” rule and there are various requirements as to what satisfies the definition of ‘involuntary intoxication.’ Lord Mustill in R v Kingston described the phenomenon as a ‘temporary change in the mentality or personality of the respondent, which lowered his ability to resist temptation so far that his desires overrode his ability to control them.’ He declared the Court of appeal supported the view that protection flows from the ‘general principles’ of the criminal law, but what exactly does the term “general” entail?
The first criterion is that the defendant cannot claim they are involuntarily intoxicated if they were misinformed about the description or specific alcohol content. This is illustrated in R v Allen where a man was convicted of indecently assaulting his neighbour even though he had no knowledge of the high alcohol content of the home made wine that he was drank at home having returned from the pub. The second criterion imposed by the courts is that the defendant must have been intoxicated to the point where it would be impossible to form the mens rea to commit the crime. The case of R v Beard created the rationale that there is no remedy if an individual’s inhibitions are lost due to involuntary intoxication. This case was more complex as it involved succession of acts; the defendant whilst intoxicated, raped a 13-year-old girl, placed his hand on her mouth to stop her from screaming, and thus suffocating her resulting in her death. The trial judge at first instance erred in applying the test of insanity to a case of intoxication, which did not amount to insanity. Has the ambiguity in this case been eradicated?
A recent paradigm of involuntary intoxication can be seen in the Kingston case involving a situation where a 15-year-old boy was drugged and indecently assaulted after the defendant’s drink was spiked. The trial judge directed the jury to convict if they found that the defendant had assaulted the boy pursuant to an intent resulting from the influence of the intoxication. The Court of Appeal upheld the appeal on the basis that it was the defendant’s ‘operative fault.’ Smith has depicted this outcome as ‘surprising, dangerous and contrary to principle.’ The opinion of the House of Lords, who took a narrow view of blame, was Smith’s preferred alternative but others favor the creation of a new common law defence determined by character assessment. Sullivan has described this as comparing the defendant’s “settled” character with their “intoxicated” character.
If the character is ‘destabilized, he should have an excuse.’ Should the blame not be directed at the 3rd party instead of the defendant though? This method creates a schism between the relevant blame and moral fault. As a consequence, mens rea is being given a more normative meaning negating its cognitive counterpart. However, the Commission is adamant to reject the creation of a new approach and wishes to give statutory effect to the decision in Kingston. They believe that ‘there should be no defence or reduced inhibitions or blurred perception of morality where the defendant’s condition was caused by involuntary intoxication.’ Only time will tell, if the legal reform bodies will cling to their orthodoxy or embrace change.
Dutch courage and diseases of the mind
To what extent is alcohol-related crime attributable to those with already dysfunctional lives, with a propensity to problematic behaviors, rather than apparently ‘normal’ people engaging in criminal acts when intoxicated? The union of actus reus and mens rea is known as contemporaneity. It is necessary to establish for a conviction to be successful. However, the Dutch courage rule, where the accused gets into a drunken state after deciding to commit a crime, is an exception to this principle. It was decided in Attorney General for Northern Ireland v Gallagher that the accused would be liable for the crime even though they were too drunk to satisfy the required mental element. Lord Denning declared ‘the wickedness of his mind before he got drunk is enough to condemn him.’ Although, it has been recognized that ‘it is almost inconceivable that the case envisaged could ever arise.’ The sale and consumption of alcohol are legal so should we accept the consequences of diminished responsibility as a cause of criminal activities if perpetrated whilst under the influence?
There has been more discussion surrounding the affiliation between alcohol and diseases of the mind. The case of R v Dietschmann concerned a defendant who was intoxicated at the time of the killing that suffered from a mental abnormality due to a recent bereavement. Lord Hutton said ‘drink cannot be taken into account as something which contributed to his mental abnormality.’ The main principle is that drunken defendants are not excluded from pleading diminished responsibility or insanity if they suffer from mental abnormalities. Ashworth believes the task of the jury to decide whether the mental abnormality affected the mens rea is ‘fearsomely difficult.’ Medical experts to some extent aid the task of the jury but the margin for error is significant as the effect of drink and drugs is unique to every individual. It has also been argued that there could potentially be a genetic predisposition to alcoholism but the scope of this is unknown.
Tolmie’s conceptualizations of the ‘disease model’ and the ‘habit model’ are eccentric and provide light recovery from psychoanalytic evaluations. I particularly enjoy the fact that she has highlighted the importance of ‘normal human processes…and bad choices,’ which are often overlooked. She concentrates on the need for treatment for defendants and does not fall into the trap of defining intoxication as an express defence. The current position of the law in this area is unfair as it deforms other doctrines, supports unprincipled sentencing and punishes some defendants far more than they deserve. Adoption of a generic, doctrinal mitigating excuse of “partial responsibility” with application to all crimes would solve these problems. This alternative option would function in a similar manner to the ‘not proven’ verdict used in Scotland. In the end, to provide blame and punishment reduction based on fair responsibility ascription will not support a denial of responsibility.
Certain statutes expressly state that a defendant has a defence if they possess particular beliefs. Does this apply where a belief is acquired through intoxication? There is only one type of case where an intoxicated belief can be used as a “defence.” In the case of Jaggard v Dickinson, the defendant appealed against a conviction of reckless criminal damage to property. The accused, owing to voluntary intoxication, mistakenly but honestly believed that she was damaging the property of a friend and that they would have consented to her doing so. A major anomaly in the law is found when the approach taken in Jaggard is contrasted with that taken in Majewski where the Criminal Justice Act 1967 was not relied upon. Wells has commented that ‘it is difficult to see how…the sections perform any different function.’ The area surrounding drunken mistakes is just one theme encircled with uncertainty. There has been much discussion of reform regarding the position of intoxication in the law. The concepts of basic and specific intent are ambiguous, confusing and misleading. The Law Commission has created a proposal to abandon them but the substance of the distinction has been retained. The main question regarding the specific and basic intent dichotomy is the affect it has on the voluntary intoxicated defendant’s liability.
The blameworthiness of the defendant is expressed by an evaluation of criminal liability. An enlightened system of criminal justice should respond differently to ‘common criminals’ and voluntary intoxicated defendants. If a man commits mischief when intoxicated, should society take steps in the framework of the criminal law to prevent him? Judicial insistence upon the requirement of mens rea might remove the problem of antisocial drinking but alternatives will not develop if the courts allow these problems to be thrust upon them. The Majewski decision has been criticized as it allows conviction for causing harm where mens rea has not been formed. This is even the case where a defendant is convicted of a basic intent offence instead of a stricter specific intent offence. The House of Lords decision acknowledged the principle of allowing intoxication to be adduced to show that the mens rea for specific intent offences did not exist.
They were persuaded by policy objectives to convict of basic intent offences despite the intoxication. This “midway course” is acceptable on policy grounds but it fails to accord with the basic principles of justice in the criminal law. Is this a clear and logical compromise? The idea to secure conviction for serious offences without satisfying the criteria of mens rea is conjured. This conflicts with the burden of proof, which is placed on the prosecution. This means the fictitious objective “recklessness” test allows conviction of offences, which require proof of subjective “recklessness.” The current rationale of the law is that the subjective reckless involved in becoming intoxicated is the moral equivalent of the subjective recklessness usually required for liability. A further criticism is that “recklessness” relates to the risk of becoming intoxicated and not to the risk of specific harm being caused.
As a result, the liability for the harm caused whilst intoxicated goes against the principle of contemporaneity and is constructive, which is contrary to the trend of current law reform. The English law reform bodies have created proposals to replace Majewski with a separate offence of intoxication. This separate offence would remove the possibility of a complete acquittal, which is available in specific intent crimes. A disadvantage to the proposal would be the construction of a “status” offence with no mens rea involved.
This contrasts with previous social policy illustrated in the case of Reniger v Fogossa where a drunken killer was hanged to death to protect human life. However, the Criminal Law Revision Committee rejected the idea of a new offence of intoxication and instead suggested the codification of the law, whilst approving the “reckless test.” Authors such as Jeremy Horder, who depicted the Law Commission’s efforts as making ‘little effort to discern any deeper principles underlying the common law’, have criticized the Law Commission attempts at clarifying the law. The reform bodies now intend to amend their previous proposals and return ‘to the subject with a stripped down approach.’
Why is it taking an unbounded amount of time to evaluate reform of the law on intoxication when 61% of the population perceives alcohol-related violence as worsening? The bare components of the law on intoxication are complex but the added series of exceptions that the Law Commission have proposed to introduce, in my opinion, will undermine the principle of justice in England and Wales. The common law has found a reasonable balance between the subjective and absolutist theories but the ‘midway course’ of specific and basic intent is not satisfactory. The dichotomy requires the courts to evaluate individual criminal acts on their merits putting them into a category of specific or basic intent, which squanders the court’s time and thus, decreases the overall inefficiency of the legal system. Child’s innovative approach involving the correlation with subjective recklessness is an alternative to the recent reform proposals.
He declares intoxication will constitute fault only where the burden is replaced by subjective reasonableness and if the defendant would have foreseen the risk if sober. The ‘midway course’ is preserved but in a clear and logical manner without a list of exceptions. However, I disagree with Child’s interpretation of intoxication as the equivalent to recklessness. I believe more research needs to be given to determine the extent of their connection and ultimately decide whether they are analogous or mutually exclusive. Ultimately, liability is ascertained by the intention element but how can this truly be deduced when automatons are intoxicated? Lady Justice Hallett in the recent case of R v Janusz Czajczynsk commented that ‘drinking to excess and taking drugs seems to us to be something of a two edged sword.’
It is tempting to view the defence of intoxication as denying a defendant ‘a valueless opportunity to exculpate himself by pleading his own discreditable conduct in getting drunk.’ However, it is impossible to accurately determine an individual’s thoughts at a precise moment and draw a line where a defendant’s account matches the truth. Simester suggests the intoxication doctrine is reversed to benefit prosecution, becoming constructive liability instead of a defence. I believe there is some accuracy in this initiative but it fails to address the main problem regarding the mental state of the accused.
Should there be a common law or statutory defence of intoxication expressly declared? The courts and the Law Commission know the law is not clear and desire to reform the law only after exploring every open avenue. The Law Commission has rightly prioritized consistency, precision and simplicity in their Reports but ‘another round of re-evaluation’ is definitely needed before a firm conclusion can be established. We can only hope that time does run out, allowing the reform debate to finish sooner rather than later.