INTOXICATION

RULE: INTOXICATION IS NEVER A DEFENCE

But, it may be the reason that the D lacked the intention to commit certain crimes, and to this
extent, if Intoxication negates intention, the D may be convicted of the lesser crime.

e.g. manslaughter instead of murder

Thus, for the simpler crimes, such as those committed recklessly, intoxication is not a defence.

The policy behind this is known as the Majewski Rule – people should not be entitled to an
acquittal simply because they were intoxicated at the time of committing the offence.

The question to be asked is – would the Defendant have committed the crime, despite the
Intoxication. This Majewski rule represents the objective approach to criminal liability

Crimes of Basic Intent and Specific Intent

In the famous case of Majewski, the Court made the distinction between

1. Crimes of Basic Intent

Generally speaking, a crime of specific intent will require an ulterior intent

A crime of basic intent may be characterized by recklessness.

Voluntary Intoxication

Intoxication is voluntary if the Defendant knowingly takes alcohol or some other drug o
intoxicant or a combination of these. It is voluntary even if he does not know the precise nature
and strength of these.

The defendant cannot claim that his power to judge between right and wrong was impaired /
affected by his intoxication

He cannot say that he would have not acted in the way he did had he not been intoxicated.

Look at the following examples –

X kills another when drunk and mistaking him for a theatrical dummy

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Y, due to intoxication, does not appreciate the fact that if he shoots with a gun, will injure
another. He does so and Z is killed.

In both of the above instances, X and Y are guilty of the crimes and they cannot claim that they
lacked mens rea.

Intoxication does not negative mens rea.

If the offence charged is one of basic intent, the D may be convicted of it if he was voluntarily
intoxicated at that time of committing the actus reus.

In a Criminal trial, if the D wishes to introduce the defence of intoxication, he needs to show that
he lacked the mens rea for the crime. If he is charged with a specific intent crime, he will have to
establish a reasonable doubt that he acted with intention. He can show that he was not aware of
a particular circumstance or did not foresee the result.

But remember, if, despite the intoxication, D formed the necessary intention, he will be guilty. A
drunken intent is still an intent.

As one can see, it is very difficult to succeed in a defence of Intoxication and the following should
be noted –

- The Court will determine the question of Intent. It will consider all the evidence and the
evidence of intoxication is just one component.

- If the D is so intoxicated as to be incapable of forming the necessary mens rea, the jury
will take that incapacity into account.

- Evidence of intoxication, however slight, can negate the Mens rea provided it prevented
the D from foreseeing or knowing what he would have reasonably realized, had he been
sober.

- Remember, loss of inhibition, poor judgment or inability to recollect events are NOT the
same as lack of mens rea. Once intoxication has been raised as a defence by D, the burden
is on the prosecution to prove intention despite the intoxication.

The Majewski Rule

This Rule provides a partial defence to crimes of specific Intent. The Crucial question is,
whether, despite the Intoxication, he has MR

‘If a man consciously and deliberately takes alcohol and drugs not on medical prescription,
but in order to escape from reality, to go ‘on a trip’, to become hallucinated, whatever the
description may be and thereby disables himself from taking the care he might otherwise take
and as a result… causes injury to another – does our criminal law enable him to say that

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 because he did not know what he was doing he lacked both intention and recklessness and
accordingly is entitled to an acquittal?

… self – induced intoxication, however gross and even if it has produced a condition akin to
automatism, cannot excuse crimes of basic intent …

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… it supplies the evidence of mens rea, of guilty
mind certainly sufficient for crimes of basic intent… the drunkenness is itself an intrinsic,
an integral part of the crime…’

Coley, McGhee, Harris [2013] EWCA CRIM 223

‘the argument for the Crown in this case is that the mental illness from which the defendant
was suffering was brought on by his past voluntary drinking… but in the present state of the
law, Majewski applies to offences committed by persons who are then voluntarily intoxicated
but not to those who are suffering from mental illness. This defendant was, it is clear, suffering
from a condition of mental illness when he set fire to his own house. That it was not long
lasting does not mean that it was not a true illness.

DUTCH COURAGE

If the D plans a crime and then consumes alcohol merely because he wants to obtain courage
to commit it, he cannot deny intention because of intention, even in the instance where
intoxication is so extreme as to negate the necessary intent.

Attorney General for Northern Ireland [1963] ac 349

‘if a man, whilst sane and sober, forms an intention to kill and makes preparation for it,
knowing it’s a wrong thing to do, and then gets himself drunk so as to give himself Dutch
courage, to do the killing, and whilst drunk carries out his intention, he cannot rely on this
self induced drunkenness as a defence to a charge of murder, nor even reducing it to
manslaughter…’

INVOLUNTARY INTOXICATION

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This is rare but can occur where D is unaware of the intoxicant if it is concealed in a drink etc., or
administered without consent, or is the unforeseen effect of medication. The Court is not
concerned with moral fault, but culpability.

Involuntary Intoxication is a complete defence to all crimes provided the Defendant lacks the
Mens Rea. It is no defence at all to one who acts with Mens Rea

R v Kingston [1994] 3 WLR 519 HOL

‘In ordinary circumstances the respondent’s paedophiliac tendencies would have been kept
under control … the ingestion of the drug 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.’

Dangerous Drugs – Voluntary Intoxication

If the D consumes a drug which is known to be dangerous in the sense that it can cause
unpredictable and aggressive behaviour, he will be regarded as voluntarily intoxicated and will
have no defence to a crime of basic intent

R v Lipman [1970] 1 QB 152 CA

‘for the purposes of criminal responsibility we see no reason to distinguish between the effect of
drugs voluntarily taken and drugs voluntarily induced. … it was well established that no specific
intent was necessary to support a conviction for manslaughter based on killing in the course of
an unlawful act and that, accordingly, self – induced drunkenness was no defence to such a
charge…’

Drugs known not to be dangerous – Involuntary intoxication

If D commits an offence under the influence of a medicinal drug taken in accordance with medical
advice which is not known to be dangerous and the drug has an unforeseen side effect causing D
to become aggressive and unpredictable, involuntary intoxication will provide a defence to all
crimes provided there was a lack of MR.

R v Hardie [1985] 1 WLR 64 CA

‘It is true that Valium is a drug and it is true that it was taken deliberately and not taken on
medical prescription, but the drug is, in our view, wholly different in kind from drugs that which
are liable to cause unpredictability or aggressiveness… the jury should not have been directed to
disregard any incapacity which resulted or might have resulted from the taking of Valium...’

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Self-defence

Where D mistakenly acts in self-defence, but this mistake is induced as a result of his intoxicated
state, self-defence will be no defence –

R v Hatton (2005) and R v O'Grady (1987).

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 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 in the case, 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.
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.

Intoxication, insanity and automatism where defendant’s intoxication induces a state of

Infancy

The age of Criminal responsibility is 10 (Doli Incapax). Therefore, children under the age of 10
are irrebuttably presumed incapable of committing a crime. Children above 10 are capable of
committing a crime but until the age of 21 there is an age differentiation in relation to procedure
and sentencing but not to legal responsibility.