EXAMINATION FOCUS
Evaluating intoxication
Sally Russell explores the law on intoxication and identifies relevant points to make when answering evaluation-style questions
Different examination boards take slightly different approaches to evaluation. OCR and WJEC/Eduqas use ‘straight’ evaluation questions in exam papers. However, AQA connects evaluation of a topic to another area. Two questions on each paper are a mix of substantive law (crime, tort, human rights and contract) and non-substantive law (the nature of law). One will be a mix of application and evaluation connected to a scenario, for 30 marks in total. The other will be an essay for 15 marks but will still be a mix of substantive law and nonsubstantive law.
Example questions
A straight evaluation question might be: ‘The defence of intoxication lacks clarity and needs to be reformed.’
Discuss how far this statement reflects the current situation.
A connected evaluation question might be:
Intoxication is rarely a defence but can be used as such when it negates mens rea. Examine the meaning of fault and discuss how far the rules on intoxication reflect the appropriate level of fault.
This links the substantive law (crime) to the non-substantive law (the concept of fault). Any evaluation entails assessing the topic and using examples to illustrate your answer. The evaluation points below can be used for straight evaluation, but will also give you some ideas for linking this evaluation to nature of law concepts such as fault, justice, policy or the rule of law. We will look at the main rules and then evaluate them.
Types of intoxication
The first matter that needs to be established is whether intoxication was involuntary or voluntary. Involuntary intoxication arises where someone has been given drink or drugs unknowingly. This may be a defence if it removes mens rea.
Involuntary intoxication
Involuntary intoxication will only be a defence where the intoxicant has the effect of removing mens rea. This was stated in Kingston (1994), where the defendant (D) committed indecent assault while intoxicated. His coffee had been spiked with drugs and he argued that he would not have acted in that way had he not been intoxicated. The evidence was that he knew what he was doing and he was found guilty. The principle is that where intoxication is involuntary it may act as a defence, but only if it negates mens rea.
Voluntary intoxication
Voluntary intoxication is where the intoxication is self-induced. This is not strictly a defence, however it may be raised at trial alongside other defences. The rules on voluntary intoxication were established in Beard (1920) and restated in Majewski (1977).
In Majewski the House of Lords (now the Supreme Court) held that intoxication could apply to specific intent crimes but not to basic intent crimes. Specific intent crimes are usually interpreted as those requiring a mens rea of intent (such as murder) and basic intent crimes as those which require recklessness (such as assault). In Majewski, D was charged with assault, so could not rely on his intoxication.
The result of Majewski is that intoxication is not strictly a defence but may have a similar effect where D is charged with a specific intent crime. D will not be guilty of the specific intent crime (e.g. murder) but will normally be guilty of an associated basic intent crime (e.g. manslaughter). An example can be seen in Lipman (1970), where D had taken LSD and, while hallucinating, killed his girlfriend believing he was fighting a giant snake. Lipman had a defence to murder and so instead was convicted of the basic intent offence of manslaughter. Similarly, if charged with wounding with intent under s.18 Offences against the Person Act 1861, the conviction will be for the lesser offence under s.20.
The principle is that voluntary intoxication applies to drink, drugs and other substances. It is not strictly a defence, but may have the effect of reducing a conviction.
Example evaluation answer
Fault and justice
At first sight the rule in Majewski appears to achieve justice. It balances the public interest with the individual private interest by denying the defence in full but reducing the conviction. This is important in murder cases, which carry a mandatory life sentence. A conviction for manslaughter means the judge can take into account the level of fault when sentencing. The problem with the rule is that there is not always a related basic intent offence. An example is theft, which cannot be committed recklessly. If mens rea was not present due to intoxication, D would be acquitted, as there is no related basic intent crime. The fact that the law will not apply equally goes against the main principle of justice. There are other problems with the rule. One is that getting drunk provides sufficient mens rea for an offence requiring recklessness. This means that for all such crimes, there is likely to be a conviction if D was intoxicated. Far from being a defence, intoxication may ensure a prosecution succeeds. The rule goes against the precedent from Cunningham (1957) that recklessness is subjective and so requires that D must see a risk and go ahead anyway. Getting drunk may be classed as reckless behaviour but does not have the same level of blameworthiness as seeing the risk of a consequence and going ahead with that risk. The rule also conflicts with the contemporaneity rule that mens rea and actus reus should coincide. The offence (the actus reus) is usually committed after D gets intoxicated (which may provide the mens rea).
Dowds (2012) makes it clear that all intoxicating substances are treated similarly, whether legal or illegal. There is a case to be made for treating legal substances less harshly. However, the counter-argument to this is that alcohol is generally legal so this could allow intoxication by alcohol to succeed in too many cases.
Intent
In Majewski the judges disagreed on how the terms ‘specific intent’ and ‘basic intent’ should be defined. They have commonly been interpreted as meaning crimes with a mens rea of intent or those where recklessness suffices.
However, in Heard (2007), the Court of Appeal (CA) suggested that a specific intent crime is one that requires an ulterior mens rea, i.e. where the mens rea goes beyond the actus reus of the crime, e.g. relates to a consequence as well as an act. D was convicted of sexually assaulting a police officer. He appealed on the basis that he was intoxicated and the offence, ‘intentionally’ touching another person sexually, was a specific intent crime. The CA rejected his argument and held that basic intent crimes could include those where the mens rea was intention to commit the relevant act, e.g. the sexual assault.
The principle is that specific intent crimes are those requiring mens rea for more than the illegal act. If the mens rea of intention is required only for the act and nothing further, it is a basic intent crime and excludes voluntary intoxication.
Example evaluation answer
Public policy
There are policy reasons for not allowing intoxication to excuse a crime. In O’Grady (1987) D was convicted of manslaughter after hitting his friend with an ashtray and killing him. The judge rejected his defence of intoxication and said ‘Reason recoils from the conclusion that in such circumstances a defendant is entitled to leave the court without a stain on his character’.
In Dowds (2012), Hughes LJ said ‘…public policy proceeds on the basis that a defendant who voluntarily takes alcohol and behaves in a way in which he might not have behaved when sober is not normally entitled to be excused from the consequences of his actions’.
This seems reasonable. It is in the public interest that the law should protect people from violence and punish those who use it when intoxicated. In cases like Lipman and O’Grady the conviction was manslaughter not murder, so the Majewski rule arguably achieved justice. Any further reduction of mens rea would have meant D was acquitted altogether.
However, some claim that Heard has taken the Majewski rule too far. There are not many crimes that require an ulterior mens rea, so most crimes would fall within basic intent. In the New Law Journal in July 2020, Simon Parsons said ‘the decision [in Heard] makes the law harsher because it limits the ambit of the defence of intoxication to crimes requiring ulterior mens rea. This obiter dictum, which has not been overruled, should not be followed as it is bad law.’
In Heard the CA noted that not all offences could be categorised as basic or specific offences, as some had elements of both.
In its 2009 report on intoxication the Law Commission noted that the terms ‘basic’ and ‘specific’ intent are confusing and misleading. In a 2012 scoping paper it said: ‘We define specific intent offences as those for which the predominant mens rea is one of knowledge, intention or dishonesty, and basic intent offences as all those for which the predominant mens rea is not intention, knowledge or dishonesty (this includes offences of recklessness, belief, negligence and strict liability).’
This definition has not been taken up and is still unclear. The lack of clarity on what the distinction in Majewski means goes against both the rule of law and principles of justice.
Self-defence
A more recent case has received further criticism from lawyers. In Taj (2018), the CA considered intoxication in connection with self-defence. This defence can succeed when force is used due to a mistaken belief that it is necessary, but not where the mistake is due to intoxication.
The CA held that voluntary intoxication provides the mens rea for crimes of basic intent (as per the rule from Majewski) even if D is not intoxicated at the time of the offence but has a history of drink and drug abuse. Although not part of the reason for the decision (and so obiter dicta), this seems to extend the Majewski rule. This means D could have mens rea for a basic intent crime even if sober at the time of offence, as long as alcohol or drugs had been taken earlier. Although the CA suggested the earlier intoxication should be ‘proximate’ to the defence, it did not clarify how proximate.
The principle is that an earlier history of intoxication could provide sufficient mens rea for a later offence.
Example evaluation answer
Fault and justice
Majewski has been criticised for failing to reflect the appropriate level of fault. Taj goes further. Previously, if D was intoxicated then Majewski applied and recklessness was established. However, if D was sober it did not apply, so the prosecution had to prove mens rea, or fault. This may be unjust but it was clear. If Taj is followed the prosecution will not have to prove mens rea even if D is sober at the time of the offence, as long as there is evidence of prior intoxication. This not only extends the concept of fault but again stretches the contemporaneity rule.
Both Heard and Taj can be said to have made the law less clear because neither ulterior intent nor proximity are explained. The comments were obiter but these cases suggest that the Majewski rule may be extended. Justice requires not only fairness but also clarity and consistency in the law.
Dutch courage
A final matter to consider is when the intoxication occurred. In Attorney-General (AG) for Northern Ireland v Gallagher (1963), the House of Lords made it clear that a person cannot get drunk in order to find the courage to kill and then use intoxication as a defence.
This is known as the Dutch courage rule. D had bought a knife, drunk a bottle of whisky and killed his wife. The House of Lords held that once a person formed an intention to kill, the defence would fail.
The principle is that intoxication does not affect prior mens rea.
Example evaluation answer
This seems a fair rule. D intended to kill, so had mens rea. However, it raises the contemporaneity issue again. D had mens rea before the killing but arguably not at the time of the actus reus.
It is in the public interest that voluntary intoxication rarely succeeds as a defence, especially to crimes involving violence. However, the rules are confusing for lawyers as well as the public. If the law is being criticised by legal professionals, then the public are unlikely to feel that justice is achieved.