Discuss the nature of the defence of intoxication

The defence of intoxication is a general defence to a criminal charge. However, the defence has limitations and, as we will learn, is not available for crimes of basic intent. The defence developed under the common law and has long been recognised.

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General defences are said to be a complete defence to a criminal offence. If the defence is successful then the defendant will be acquitted and found not guilty of the offence. Should the defence fail, for example the jury may fail to agree on the defendant's version of events, then the defendant will be found guilty of the charge. For this reason it is not a partial defence and could be said to be an 'all or nothing defence'.


Some defences are referred to as 'special defences' meaning that, whilst they are by nature a defence to criminal behaviour, they do not operate to totally absolve the defendant from responsibility. Special defences can only apply to a specific charge such as murder.


The Homicide Act 1957, created three defences that can only be pleaded in response to a murder charge. The defences are provocation, diminished responsibility and suicide pact. The effect of such a defence, if successful, is to reduce the charge of murder to manslaughter. There can be no acquittal in such circumstances and therefore it follows that there will be a conviction even if the defence is successful.  (Note: Section 54 of the Coroners and Justice Act 2009 replaces the the former defence of provocation, found in  the Homicide Act 1957,   with the defence of loss of control. The provisions in the 2009 Act apply to defendants charged with murder where the death of the victim was the result of acts or omissions which took place on or after 4 October 2010. Provocation will remain as a defence to killings which took place before 4 October 2010).


Intoxication can be contrasted with some other defences such as insanity, automatism,mistake, and self defence, which are available for all offences. In the case of intoxication it is subject to a limitation in that it is not available for crimes of basic intent.


Insanity is available as a defence to all crimes except crimes of strict liability. It is not commonly pleaded because of the stigma attached to the special verdict reached by the court.


Intoxication is not the only defence which is subject to limitations. Duress is another defence which has limitations imposed by the courts. Duress is not available to use as a defence to murder, attempted murder and possibly treason.


Necessity is very problematic and is strictly limited, so much so that there are very few examples of it successfully being pleaded as a defence.


Finally, consent is not available for murder or for serious assaults.


Intoxication is not available for all crimes and in particular cannot be pleaded in response to a basic intent crime. A basic intent crime is one where no specific intent is required for the offence to arise. In the case of basic intent crimes, a lesser form of mens rea may be sufficient, such as recklessness in the case of common assault. A specific intent crime generally requires a high level of mens rea such as the intention to kill or cause serious harm in the case of murder.


Intoxication does not only cover intoxication by alcohol. The defence also covers intoxication by drugs and other substances, including glue-sniffing.


If we examine the nature of the defence in more depth, we will find that the defence does not provide a defence as such, in the sense that the defendant is able to justify, or is excused for the wrong. The question of whether the individual was intoxicated or not is relevant to the fundamental principles of criminal liability, namely, whether the defendant formed the necessary mens rea for the offence in question. If it can be shown that he did not possess the necessary mens rea then he or she may not be guilty.


We have already touched upon the issue that the question of whether the defendant will be guilty or not depends on whether the offence in question is a specific or basic intent crime. It will depend on whether the person's drunken state was voluntary or involuntary.


Voluntary intoxication may make it difficult to establish whether the defendant had the necessary mens rea, for example intention, for a specific intent offence. In other words the evidence may show that the defendant was so intoxicated, and from such an early time, that he or she would have been too incapacitated to be able to form the necessary thought processes to form an intention to carry out the actus reus. If it can be shown that the defendant still had the necessary mens rea, then he or she is guilty of the offence. The courts are not prepared to allow a defence in such circumstances A-G for Northern Ireland v Gallagher (1963).


As we have seen in the case of a basic intent crime, the fact that the defendant was intoxicated is no defence. In these cases no specific intent is required and all that is necessary in most cases is to show that the defendant was reckless as to whether the offence arose. The courts take the broad approach that, voluntarily drinking and becoming intoxicated, is reckless in itself – 'It is a reckless course of conduct and recklessness is enough to constitute the necessary mens rea' Majewski (1977). In DPP v Majewski Lord Elwyn-Jones said that 'Self induced intoxication, however gross and even if it has produced a condition akin to automatism, cannot excuse crimes of basic intent such as assault.' The fact that the defendant appreciated and was aware of the risk must also be established by the prosecution Richardson and Irwin (1999).


In Metropolitan Police Commissioner v Caldwell (1982), gave an objective meaning of recklessness stating that a defendant would be guilty if an ordinary adult would have realised the risk. This was overruled in R v G and R (2003).



The matter of involuntary intoxication also touches upon the basic principles surrounding criminal liability. The rules in this area are intended to cover situations where the defendant is not aware that he is taking an intoxicating substance, for example where a non-alcoholic drink has been 'laced' with alcohol or some other substance. The matter will rest upon whether the individual had the necessary mens rea for the offence. If they did, then they will be guilty of the offence. In such circumstances it is not enough to simply show that the defendant became intoxicated involuntary. Equally, it is not a sufficient argument to try and establish that if the person was sober he would not have formed the mens rea – the defence will not be allowed in such situations.


In cases where it cannot be established that the defendant had the necessary mens rea he will not be found guilty because such a principle is fundamental to successful prosecution in this country. In such cases it is not possible to show that the defendant is 'blameworthy' in some way and therefore it is difficult to see why they should be punished in such circumstances.


The issue of intoxication can also arise in the context of another defence such as mistake about a fact. The nature of the mistake must be one of fact, not law, so that if the facts had been as the defendant believed them to be, either this would negate mens rea or that this would enable the defendant to be able to rely on another defence.


In the case of Richardson and Irwin two students dropped another student from a balcony on to the ground 12 feet below. They had all been drinking and were involved in drunken horseplay. The argument arose as to whether there had been a mistaken belief that the victim was consenting to the drunken activities. This would mean that the defendants could escape liability even though the mistake was exacerbated by intoxication. This argument was accepted by the Court of Appeal. Clarke LJ said that the question was not what another person would have foreseen but what the defendants themselves would have foreseen had they been sober.


It has also been accepted by the courts that the statutory defence provided bySection 5 of the Criminal Damage Act 1971, to a charge of criminal damage may still be available even though the mistake may have been made as a result of intoxication. Section 5 allows 'an honest belief that the person to whom the property belonged would have consented to the criminal damage', as a defence to a charge of criminal damage. If such a mistaken belief comes about as a result of intoxication this is not fatal to the defence (Jaggard v Dickinson (1981).


By way of closing, it can be seen that the defence of intoxication can provide an effective response to a criminal charge and may lead to an acquittal. However there are limitations and it is probably more appropriate to consider intoxication not as a defence as such but relevant to the question or issue as to whether mens rea can be established by the prosecution. It is possible to argue and make out a case for allowing the defence in such circumstances by reference to the fundamental principles of criminal liability, namely the need for a voluntary act 'actus reus' and the coincidence of the necessary mens rea.



Word Count 1538



Attorney General for Northern Ireland v Gallagher (BAILII: [1961] UKHL 2 )

DPP v Majewski (BAILII: [1976] UKHL 2 )

Commissioner of Police v Caldwell (BAILII: [1982] UKHL 1 )

Criminal Damage Act 1971 Section 5 - Legislation.gov.uk


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