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G GENENEERRAALL DDEFEFEENNCCEESS::
I INTNTOOXXIICCAATTIIOONN..
BY THE END OF THIS UNIT YOU WILL BE ABLE TO:
Explain what is meant by ‘intoxication’, and its impact on D’s liability for the offence. Explain the different rules for voluntary and involuntary intoxication, using appropriate case law. Explain the specific/basic intent dichotomy and its affect on liability Understand the law on intoxicated mistake. Understand the impact of public policy on the rules of intoxication.
YOU WILL ALSO BE ABLE TO EVALUATE:
The current state of the law and proposals for reform. The impact of public policy on the development of the defence and the definition of basic and specific crimes. The overlaps between this and the mental state defences.
H HOMOMEEWWOORRKK::
You are reminded of the importance of completing homework to the best of your ability, and in line with your target grade. Homework which is not handed in on time risks not being marked and returned. In addition, failure to complete work on time may ultimately jeopardise your exam entry.
- Write up response to essay question, using the plan as guidance.
E ENDND OOFF UUNNIITT TTESESTT::
DRAG test at the end of the unit on all of general defences. [ Remember to keep making those notes! ] ^ You will also be given a past section A question. We will plan it in class, and you will write it up as homework in your own timed circumstances!
“The law on intoxication has developed in accordance with public policy rather than being based in principle.” Discuss how accurate this statement of the law on intoxication is. [50] June 2005
I INTNTOOXXIICCAATTIIOONN
Wh Whaatt iiss iinnttooxxiiccaattiioonn??
Well, simply put it means that D has taken drugs, alcohol or other substances (prescribed or otherwise] which have substantially incapacitated his judgment.
This takes the form of two issues: Either D is not capable of forming the MR or It has caused D to make a mistake.
Should D have a defence in either of these situations?
This means that really intoxication is not a true defence but rather an ‘excuse’.^1 D is arguing that they were incapable of forming the MR for the particular defence.
Should it matter if you are voluntarily or involuntarily intoxicated? Why/ why not?
Wh Whaatt iiss tthhee gegenneerraall rurullee ffoorr vvoolluunnttaarryy iintntooxxiiccaattiioonn??
No, I am not giving you the answer to this! Use your brains…
TASK:
Read the enclosed articles, and the statistics on the IWB on the impact of alcohol on crime. Why do you think that intoxication is such a controversial public policy issue?
(^1) Remember that, generally speaking, if D does not have the MR, they will not be liable for the crime. Most writers argue that the defences fall into one of two categories
- a reason or an excuse. What do you think? Which is the most accurate description of defences?
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You’d think it was obvious, the Act of Parliament will tell us. However, the courts have recently taken a much more open and loose interpretation of this. They aren’t helped by the fact that the court in Majewski doesn’t make it clear quite how we are supposed to distinguish between the two.
TTAASSKK
Below is s.3 of the Sexual Offences Act 2003.
What kind of crime does it create? One of basic intent or one of specific intent? What does this mean if D is sufficiently intoxicated to affect his MR?
.
This is the basis of the facts in R v Heard 2007 , and is quite a controversial decision!
Following precedent, should he have been able to rely on self-induced intoxication? Why/why not?
What are the facts of the case?
According to the judges, was it a specific or basic intent crime?
Was he successful in his appeal?
What do you think that the courts took into account in making their decision?
(1) A person (A) commits an offence if —
(a) he intentionally touches another person (B), (b) the touching is sexual, (c) B does not consent to the touching, and (d) A does not reasonably believe that B consents
Bu Burrddeenn && SSttaannddaarrdd ooff PPrrooooff
If D raises intoxication, and it is put to the jury, then it is up to the prosecution to prove beyond reasonable doubt that despite the evidence D had formed the mens rea. (That is, to disprove that the intoxication removed their MR)
Strict liability Crimes?
This is really logical. Basically, because these offences require no MR, it is irrelevant , whether voluntary or not!
e.g. s.5 Road Traffic Act 1985 an offence to drive a motor vehicle on a public road while D’s breath alcohol level exceeds prescribed limits.
Take care: this can lead to unfairness in the law
Blakely & Sutton v DPP 1991 Facts: Ratio:
Question: Is public policy more important than individual injustice?
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Attorney-General for Northern Ireland v Gallagher 1963 Facts : Ratio : D’s action amounted to a ‘continuing act’.
“If a man, whilst sane and sober, forms an intention to kill, he cannot rely on this self induced drunkeness as a defence to murder”
This rule applies to both specific and basic crimes
Man stabs a man, thinking it is a theatre dummy
Nurse at a christening puts a baby on the fire instead of logs.
Denning: Why would both DD have a defence of intoxication to their offences?
B BASASIICC IINTNTEENNTT CCRIRIMMEESS
Revision :
- What is the current test for recklessness? Which case does it come from?
- So, why then is intoxication not a defence to these crimes?
DPP v Majewski (1977)
This is the key case on intoxication. Facts : Ratio : Certified Question:
Decision of the court:
R v Fotheringham 1988
Facts: Ratio: Intoxication that is self-induced is no defence to rape.
In Invvoolluunnttaarryy IInnttooxxiiccaattiioonn
So, what happens if you don’t know that you are intoxicated i.e. spiked?
Can you then rely on defence? What if the intoxication removes barriers in your behaviour? What if prescribed drugs have a very different effect?
Clearly, if it is a specific intent crime, and D does not have the MR, then he will not be liable.
TEST:
Did D have the necessary MR when he committed the offence? If yes then D will be convicted even if the intoxication lowered his resistance. What do I mean by this? Well….
R v Kingston 1994
- What are the facts of the offences?
- What were D’s impulses, the resistence to which was lowered by the intoxicant?
- Name two of the problems with the Court of Appeals upholding of the conviction.
- Who has the burden of proof?
- What is meant by a ‘spurious’ defence?
- Was the decision of CA upheld?
S SOO,, (^) WWHHAATT AARREE TTHHEE RRUULLEESS OON ININNTTOOXXIICCAATTIIOONN SSOO FFAARR??
How do you know whether it is a specific or basic intent crime?
R v O’Grady
Facts Ratio [urgh. We have to listen to Lane LCJ in this… sorry]
Note: O’Grady is not limited to manslaughter - it includes other crimes.
This was confirmed in R v Hutton 2005
Facts Ratio
And... Criminal Justice and Immigration Act 2008 s.76(5) explicitly says that “[the defence] does not enable D to rely on any mistaken belief attributable to intoxication that was voluntarily induced.”
Ok Ok,, ssoo II nneeeedd ttoo kknnooww oonnee rruullee…… eaeassyy?? AAhh bbuutt!!
Jaggard v Dickinson 1981
Facts: Ratio: s.5 Criminal Damage Act 1975
How can you criticise this decision? The Law Commission is particularly unhappy with this decision. They argue that it seems to act in the face of all other Parliamentary intentions.
P PROROBBLLEEMMSS AANNDD EEVAVALLUUAATTIIOONN
Using the information at your disposal, on the interactive board, complete the grid below, outlining problems with the current law.
Remember, you need to be comfortable with this for the AO2 marks (20 per question). You should be exploring both the positive and the negative sides of each.
AREA OF EVALUATION ARGUMENTS
Dr Druunnkkeenn MMiissttaakkee
MMaajjeewwsskkii^ ccrriittiicciissmm
AA ttoooo wwiiddee inintteerrpprreettaattiioonn ooff ‘ ‘rreecckklleessssnneessss’’
La Laww CCoommmmiissssiioonn aanndd ththeeiirr cchhaannggiinngg mmiinnddss!!
1993 – “radical reform”
1995 – “complicated codification”
2009.... see later
TThhee aarrbbiittaarryy bbaassiicc aanndd spspeecciiffiicc iinntteenntt didiffffeerreennccee
MMoorree eeffffeeccttiivvee wwiitthh cecerrttaaiinn ccrriimmeess
Ot Othheerr jjuurriissddiiccttiioonnss...... Ar Aree tthheeyy rreeaallllyy ssoo didiffffeerreenntt??
Canada USA
Australia New Zealand
R REVEVIISSIIOONN QQUUEESSTTIIOONNSS
- Name three basic intent offences
- Name three specific intent offences
- Define the concepts of voluntary and involuntary intoxication.
- How is alcohol linked to crime?
- Why does the case of Richardson & Irwin contradict Majewski?
- What does Heard show about the difference between basic and specific intent crimes?
- What is the implication of Gallagher?
- Explain 2 ways in which the law on intoxication could be reformed.
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US USIINNGG TTHHEE AANNSSWWEERRSS DDIISSPPLLAAYYEEDD…….. HHOOWW MMAANNYY DDOO YOYOUU KNKNOOWW??
R v KINGSTON [1995] 2 AC 355 HL
LORD MUSTILL :
My Lords, this appeal concerns the effect on criminal liability of involuntary intoxication.
At a trial in the Crown Court at Lewes in March 1992 the respondent Barry Kingston and a man named Penn were jointly indicted on a count of indecent assault on a youth aged 15 years. Penn also faced a second count that he unlawfully caused to be taken by that youth a stupefying drug with intent. At the close of the prosecution case Penn pleaded guilty to the first count, but maintained his plea of not guilty to the second. In the event the jury convicted Penn on the outstanding charge of administering a drug and the respondent on the single charge of indecent assault. The conviction of the respondent was by a majority. The trial judge (Potts J) sentenced each defendant to five years’ imprisonment on the charges of indecent assault and Penn to an additional consecutive period of one year on the second count.
The relevant facts are simple. The respondent was in dispute over business matters with a couple named Foreman, who employed Penn to obtain damaging information which they could use against the respondent, who is a homosexual with paedophiliac predilections. As part of this plan Penn invited the youth to his room. According to the evidence given by the youth at the trial he remembered nothing between the time when he was sitting on the bed and when he woke up, still in Penn’s room, the following morning. It was the case for the prosecution, which the jury by their verdict on the second count must have accepted, that the boy fell asleep because Penn had secretly given him a soporific drug in a drink. On the same evening the respondent went to the room where the youth lay unconscious. He and Penn indulged in gross sexual acts with him. As part of the plan Penn made a recording of what was going on, and also took some photographs. Since an appeal against sentence is pending I will say nothing about these, although they obviously played an important part in the trial. Later, this material came into the hands of the police and charges were brought.
At the outset of the trial counsel for the respondent foreshadowed a defence on the lines that as part of the plan Penn had secretly administered drugs not only to the boy but also to the respondent. It was not said, and, in the light of the recordings and photographs, could not have been said, that the consequence was to make the respondent, like the boy, insensible; nevertheless his case was he had suffered effects which annulled the criminal liability which his acts would otherwise have involved. … … [A] point of law of general public importance [is] involved … namely: ‘(a) Whether, if it is proved that the necessary intent was present when the necessary act was done by him, a defendant has open to him a defence of involuntary intoxication; (b) if so, on whom does the burden of proof lie?’ … In ordinary circumstances the respondent’s paedophiliac tendencies would have been kept under control, even in the presence of the sleeping or unconscious boy on the bed. The ingestion of the drug (whatever it was) brought about 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. Thus we are concerned here with a case of disinhibition … … The judgment under appeal implies five characteristics.
(1) The defence applies to all offences, except perhaps to absolute offences. It therefore differs from other defences such as provocation and diminished responsibility.
(2) The defence is a complete answer to a criminal charge. If not rebutted it leads to an outright acquittal, and unlike provocation and diminished responsibility leaves no room for conviction and punishment for a lesser offence. The underlying assumption must be that the defendant is entirely free from culpability.
(3) It may be that the defence applies only where the intoxication is due to the wrongful act of another and therefore affords no excuse when, in circumstances of no greater culpability, the defendant has intoxicated himself by mistake (such as by short-sightedly taking the wrong drug)…
(4) The burden of disproving the defence is on the prosecution.
(5) The defence is subjective in nature … [H]ere the only question is whether this particular defendant’s inhibitions were overcome by the effect of the drug. The more susceptible the defendant to the kind of temptation presented, the easier the defence is to establish.
… I can only say that the defence appears to run into difficulties at every turn …
On the practical side there are serious problems. Before the jury could form an opinion on whether the drug might have turned the scale, witnesses would have to give a picture of the defendant’s personality and susceptibilities, for without it the crucial effect of the drug could not be assessed; pharmacologists would be required to describe the potentially disinhibiting effect of a range of drugs whose identity would, if the present case is anything to go by, be unknown; psychologists and psychiatrists would express opinions, not on the matters of psychopathology familiar to those working within the framework of the Mental Health Acts but on altogether more elusive concepts. No doubt as time passed those concerned could work out techniques to deal with these questions.
Much more significant would be the opportunities for a spurious defence. Even in the field of road traffic the ‘spiked’ drink as a special reason for not disqualifying from driving is a regular feature. Transferring this to the entire range of criminal offences is a disturbing prospect. The defendant would only have to assert, and support by the evidence of well-wishers, that he was not the sort of person to have done this kind of thing, and to suggest an occasion when by some means a drug might have been administered to him for the jury be sent straight to the question of a possible disinhibition. The judge would direct the jurors that if they felt any legitimate doubt on the matter - and by its nature the defence would be one which the prosecution would often have no means to rebut - they must acquit outright, all questions of intent, mental capacity and the like being at this stage irrelevant. … Accordingly I would answer the first certified question in the negative and would allow the appeal …
