Defences II: Intoxication

DEFENCES II: INTOXICATION

Technically intoxication is not a defence, although it is often spoken of as such. Should
there be a special defence for those who commit crimes with the necessary mens rea,
after being involuntarily intoxicated?
This defence often concerns someone who is so intoxicated that they didnt form the
relevant mens rea for the offence.
The question is a question of factDid they form a mens rea?
DPP v Beard [1920]
Lord Birkenhead LC: ... where a specific intent is an essential element in the offence,
evidence of state of drunkenness rendering the accused incapable of forming such an
intent should be taken into consideration in order to determine whether he had in fact
formed the intent necessary to constitute the particular crime. If he was so drunk that
he was incapable of forming the intent required he could not be convicted....
Sheehan and Moore [1975]
The defendants were both very drunk and thought the victim had stolen a pound from
them. In response to this apparent theft, they poured petrol all over the victims house
and burnt it down and did the same with the victim. When they came to trial they
claimed they were so drunk they couldnt remember it. The trial judge said that the
intoxication was only relevant if they were so drunk that they couldnt form the intent,
CA said that this was misdirection and that it was about the fact that they were so
drunk they didnt form the mens rea.
CA in cases where drunkenness and its possible effect on the defendants mens rea is
in issue, we think that the proper direction to a jury is, first to warn them that the
mere fact that the defendants mind was affected by drink so that he acted in a way in
which he would not have done had he been sober does not assist him at all, provided
that the necessary intention was there. A drunken intent is nevertheless an intent.
(Per Lane L.J. at p. 964.)
Bowden [1993]
Attorney-General of Northern Ireland v Gallagher [1963]
per Lord Denning: If a man, whilst sane and sober forms an intention to kill and then
gets himself drunk to do the killing, and whilst drunk carries out this intention, he
cannot rely on this self-induced drunkenness as a defence to a charge of murder

If no mens rea: was it because of intoxication?

Defences II: Intoxication

Lipman [1970]
The defendant took LSD and he claimed as a result had an hallucination in which he was
attacked by a many-headed monster. He killed the monster. On recovering, he
discovered that in fact he had killed his girlfriend. He was not permitted to plead
insanity because it was his voluntary intoxication, rather than any disease of the mind,
which had caused him to be unaware of the nature of his acts. Intoxication is not a
defence to manslaughter.
Stripp (1978)
Strip was drunk, he fell over and got concussion, he had never driven before, and then
went and drove a bus for a mile and was convicted of various driving offences.
Convicted.
Involuntary Intoxication
If intoxication is involuntary, the defendant may raise evidence that they didnt form
the mens rea according to the intoxication, the question is simply, did they have the
mens rea?
Kingston [1994]
Details of Case -> Barry Kingston was in dispute with two former business associates.
They hired Kevil Penn to photograph Kingston in compromising situations with a boy so
that they could blackmail him. Penn lured a 15 year old boy to his flat, gave him a drink
which allegedly contained sedative drugs and some cannabis. The boy fell asleep on a
bed and remembered nothing until he woke up the next morning. Penn then invited
Kingston to his flat and gave him some coffee. Kingston claimed that unknown to him
Penn had drugged the coffee. Penn then showed Kingston the naked boy on the bed and
Kingston and Penn assaulted him. Penn photographed and taped the indecent assault.
Kingstons defence was based on the fact that he had been involuntarily intoxicated.
Although he admitted he had paedophile tendencies, he claimed to have always been
able to keep these under control. Kingston explained that the drugs Penn had put in his
coffee had caused him to lose his inhibitions and commit the offence. The trial judge
directed the jury that if they found the defendant had intentionally assaulted the boy
he was guilty, even if that intent had been induced by the drugs administered by Penn.
On appeal to the CA his conviction was quashed on the basis that if drugs were
surreptitiously administered to a person who was thereby caused to lose his inhibitions
and form an intent which he would not otherwise have formed this was not a criminal
intent. The issue was referred to the HL.
Held -> HL convicted him.
Commentary -> This decision makes it clear that if a defendant has the necessary mens
rea for the offence the fact that he only committed it because he was involuntarily
intoxicated provides no defence. It is, however, not clear what would happen in a case

Defences II: Intoxication

where the defendant was involuntarily intoxicated and committed a strict liability or
negligence-based offence. Lord Mustills reasoning appears to indicate that the
defendant would still be guilty, but his is by no means beyond doubt.
I must suggest that no such principle exists, or until the present case, had ever in
modern times been thought to exist. Each offence consists of a prohibited act or
omission coupled with whatever state of mind is called for by the statute or rule of the
common law which creates the offence. In those offences which are not absolute the
state of mind which the prosecution must prove to have underlain the act or omission the mental element - will in the majority of cases be such as to attract disapproval.
The mental element will then be the mark of what may properly be called a guilty mind.
The professional burglar is guilty in a moral as well as a legal sense; he intends to break
into the house to steal, and most would confidently assert that this is wrong. But this
will not always be so. In respect of some offences the mind of the defendant, and still
less his moral judgment, may not be engaged at all. In others, although a mental activity
must be the motive power for the prohibited act or omission the activity may be of such
a kind or degree that society at large would not criticise the defendants conduct
severely or even criticise it at all. Such cases are not uncommon. Yet to assume that
contemporary moral judgments affect the criminality of the act, as distinct from the
punishment appropriate to the crime once proved, is to be misled by the expression
mens rea, the ambiguity of which has been the subject of complaint for more than a
century. (At p. 526.)

Voluntary Intoxication
If the intoxication is self induced, it is clear the defendant has done something wrong.
The law balances this by dividing crimes of specific intent and basic intent up.
Majewski [1977]
The defendant and his friends had been drinking all day and taking barbiturates. They
became abusive in a pub. The pub owners tried to throw them out but they refused, the
police were subsequently called. They kicked and punched the police. They got arrested
and claimed they had no idea what they were doing. The defendant was convicted and
HL said that they had to draw the distinction between specific and basic intent.
H.L.: 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 course of conduct is
reducing himself by drugs and drink to that condition in my view supplies the evidence
of mens rea, of guilty mind, certainly sufficient for crimes of basic intent. It is a
reckless course of conduct and recklessness is enough to constitute the necessary mens
rea in an assault case. (Per Elwyn Jones, L.C. at p. 474.)

Defences II: Intoxication

Specific or Basic? A summary of main offences:

The dividing line between a basic intent and specific intent is very vague.
Certain things are clear though:
If recklessness is the mens rea it is a basic intent offence.
Section 20 OAPA = basic: Aitken (1992)
Section 47 OAPA = basic: Majewski (1977);
Battery = basic: Majewski (1977)
Assault = basic: Majewski (1977)
Rape = basic; Woods (1980)
Manslaughter = basic; Beard (1920)
Murder = specific intent; Beard (1920)
Theft = specific; Majewski (1977)
Section 18 OAPA = specific: Davies (1991);
Criminal damage if charged as intentional is a specific intent. But if charged as
recklessness, is a basic intent.
Specific Intent
Beard [1920]
The intoxicated defendant raped a girl. When she tried to escape, he put his hand over her mouth
suffocating her. He said he wouldnt have done it if he wasnt so intoxicated.
HL: where a specific intent is an essential element in the offence, evidence of a state
of drunkenness ... should be taken into consideration in order to determine whether he
had in fact formed the intent necessary to constitute the particular crime. (Per Lord
Birkenhead L.C. at p. 499.)
Cole [1993]
Someone lost an eye because of Cole. He said he didnt foresee what would happen
because he was so drunk. He was charged with intentional wounding and GBH.
CA: The issue ... was whether a person actually had formed an intent, not
whether he or she had been capable of forming an intent. The danger of not
directing the jury about this was that they might conclude that the capacity to
form the intent was sufficient.
Basic intent

Majewski, the Lord Chancellor accepted, as correctly stating English law, the provision
in s.2.08 (2) of the American Model Penal Code:
When recklessness establishes an element of the offence, if the actor, due to
self-induced intoxication, is unaware of a risk of which he would have been aware had he
been sober, such awareness is immaterial.

Defences II: Intoxication

Caldwell [1982]
The speech of Lord Elwyn-Jones L.C. in Majewski [1977] AC 443, 475 with which Lord
Simon of Glaisdale, Lord Kilbrandon and I agreed, is authority that self-induced
intoxication is no defence to a crime in which recklessness is enough to constitute the
necessary mens rea. (Per Lord Diplock at p. 356.)
Question to be asked if the offence is one of basic intent
Richardson [1999]
Richardson and his friends were at university and they had been drinking. They took the
victim and dangled him over the balcony at their halls. They dropped him 12 feet and he
sustained injuries. In their state of intoxication, it has to be seen if they were sober
would they have foreseen the harm? I.e. whether they would have been reckless if they
were sober.

Dangerous and Non- Dangerous Drugs

Dangerous drugs are those that people know are likely to cause unpredictability or
aggression. Illegal drugs are usually simply taken as being dangerous.
Lipman [1970]
The defendant took LSD and he claimed as a result had an hallucination in which he was
attacked by a many-headed monster. He killed the monster. On recovering, he
discovered that in fact he had killed his girlfriend. He was not permitted to plead
insanity because it was his voluntary intoxication, rather than any disease of the mind,
which had caused him to be unaware of the nature of his acts.
Majewski (supra)
Hardie [1984]
CA : There was no evidence that it was known to the appellant or even generally known
that the taking of valium in the quantity taken would be liable to render a person
aggressive or incapable of appreciating risks to others or would have side effects such
that its self-administration would itself have an element of recklessness. It is true that
valium is a drug and that it was taken deliberately and not taken on medical
prescription, but the drug is, in our view, wholly different in kind from drugs which are
likely to cause unpredictability or aggressiveness. It may well be that the taking of a
sedative or soporific drug will, in certain circumstances, be no answer, for example in a
case of reckless driving, but 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

Defences II: Intoxication

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. (Per Parker L.J. at p. 853.)
Alcohol
Intoxication and Defences
The basic rule is you lose the defence if it based on a mistake on voluntary intoxication.
It applies to both basic intent and specific intent offences.
Beckford v R [1988]
OGrady [1987]
OGrady and his friends went out and got exceptionally drunk. They had an argument
and killed the victim. He claimed honestly but mistakenly believing that the victim was
going to attack him. The CA said that there is no case to decide this one on, so they
held that there is no defence when there is voluntary intoxication.
where the jury are satisfied that D was mistaken in his belief that any force or the
force which he in fact used was necessary to defend himself and are further satisfied
that the mistake was caused by voluntary intoxication then the defence must fail. We
do not consider that any distinction should be drawn on this aspect of the matter
between offences involving what is called specific intent, such as murder, and offences
of so called basic intent, such as manslaughter. Quite apart from the problem of
directing a jury in a case such as the present where manslaughter is an alternative to be
considered separately from the question of intent. A sober man who mistakenly believes
he is in danger of immediate death at the hands of an attacker is entitled to be
acquitted of both murder and manslaughter if his reaction in killing his supposed
assailant was a reasonable one. What his intent may have been seems to us to be
irrelevant to the problem of self-defence or no. (Per Lane L.C.J. at p. 423.)
OConnor [1991]
The defendant had been drinking and argued with the victim in a bar. He headbutted
the victim until he died. He claimed he was acting in self defence as he mistakenly
believed he needed to defend himself. His mistaken belief shows he was voluntarily
intoxicated, and thus the defence argument failed.
Hatton [2005]
This case accepted the OGrady judgement. The defendant had drunk over 20 pints. He
thought he was being attacked by the victim, and so killed him with a sledgehammer. He
was convicted of murder. He could not rely on self defence because it was voluntary
intoxication

Defences II: Intoxication

Jaggard v Dickinson [1981]

The defendant had the permission to treat her friends home as her own. Took a taxi to
her house but went to the neighbours house instead because she was drunk. She broke
the window to get in and was charged with criminal damage. The defendant claimed even
though she was drunk, she believed she had a right to this, and the provision courts
accepted this, because the statute was interpreted subjectively where it says about
the defendant believing something. This case is contrary to all the other cases due to
the interpretation of the Criminal Damages Act.