Defences

Intoxication
Intoxication is not a true defence. It is no excuse for the defendant to argue that they would not have
acted that way had they been sober. Instead it is a means of putting doubt into the minds of the jury
as to whether the defendant formed the mens rea. Alcohol and other drugs have an influence on
peoples perceptions, judgement, self-control and their ability to foresee the consequences of their
actions.
If enough members of the jury are in doubt to the defendants mens rea then they must acquit. This
is a problem, this would mean the more intoxicated the defendant becomes the better the chances of
acquittal. Public policy demands the opposite, therefore the law has attempted to meet a
compromise.
The defendants intoxication must be extreme in order to prevent them from foreseeing any
consequences of their actions.
The defendant must bring up the defence of intoxication before the matter becomes a live issue
Groark 1999.

Voluntary Intoxication
The present law is comparatively lenient. In DPP v Beard 1920, Lord Birkenhead laid down that if
the defendant was rendered incapable of forming the intent to kill or causing GBH, then he would
not be guilty of murder, but would be guilty of manslaughter. He emphasised that intoxication was
merely a means of demonstrating that the defendant lacked, on a particular charge, the mental
element necessary.
This principle has remained largely unchanged, though it is now accepted that the defendant need
not be incapable of forming the mens rea; it is sufficient if he does not in fact do so.
Conversely the defendant may be very drunk and still form the mens rea.
According to Sheehan 1975, where the defendant raises intoxication in an attempt to show lack of
mens rea, the jury should be directed as follows;
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 intention.
The cases where any defendant has successfully avoided conviction on account of intoxication are
very rare.

Basic and Specific intent

In Beard Lord Birkenhead use the expression specific intent. This means that where a particular
crime required a particular intent to proven, then the case was not made out until the proof was
achieved.
In Bratty 1963, Lord Denning said;
If the drunken man is so drunk that he does not know what he is doing, he has a defence to any
charge, such as murder or wounding with intent, in which a specific intent is essential, but he I
still liable to be convicted of manslaughter or unlawful wounding for which no specific intent is
necessary.
In DPP v Majewski 1977 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.

Distinguishing basic and specific intent offences.

DPP v Majewski confirms the distinction between crimes of specific and basic intent. The courts
have now assigned most crimes to one category or another.
Crimes of specific intent

Murder

Wounding with intent (s.18 OAPA)

Causing grievous bodily harm with intent (s.18 OAPA)

Theft

Robbery

Burglary

Attempts

Crimes of Basic Intent

Manslaughter (involuntary)

Rape

Wounding (s.20 OAPA)

Inflicting GBH (s.20 OAPA)

Assault occasioning actual bodily harm (s.47 OAPA)

Assault and battery

Criminal damage

There are some passages in DPP v Majewski that suggests that the defendant will be automatically
guilty, merely because he committed the actus reus of a basic intent offence whilst drunk. That is his
intoxication substitutes for the mens rea of the offence, his intoxication is conclusive proof that he
was reckless.
Lord Elwyn-Jones
Being intoxicated demonstrates a reckless course of conduct and recklessness is enough to
constitute the necessary mens rea in assault cases. The drunkenness is itself an intrinsic, an integral
part of the crime.
However in more recent cases the courts have softened their approach. Although intoxication is still
no defence to basic intent offences, simply committing the actus reus whilst intoxicated no longer
invites an automatic conviction.
Richardson & Irwin 1999
Therefore the rule in basic intent crimes is that the jury should be directed to assume that the
defendant was sober, and assess what he would have foreseen in that condition. They should not
consider what the reasonable man would have foreseen. But this is better than Majewski, where
simply being drunk is automatically reckless.

Involuntary manslaughter
The Majewski rules only apply when the defendant was voluntarily intoxicated. The rules are
relaxed when the defendant becomes intoxicated without his knowledge or against his wishes. The
defendant is not entitled to be automatically acquitted but is entitled to have the evidence of
intoxication considered, even where the offence in one of basic intent. If the intoxication negatives
mens rea he is entitled to an acquittal but, if not, he remains liable, even though he would not have
acted as he did had he remained sober.
In Kingston 1995 the House of Lords confirmed this proposition. The court of appeal had allowed
his defence of intoxication to the indecent assault, on the basis that it was not his fault that he had
become drunk. The House of Lords overturned the appeal and restored the conviction.
There are 4 main situations where the defendants intoxication will be treated as involuntary,
namely where the intoxicating substance was;

Taken under medical prescription

Commonly known to have a soporific or sedative effect

Taken by the defendant without his knowledge

Taken under duress.

Where any of these is the case, then the defendant will be entitled to have his evidence of
intoxication considered, even where the crime is one of basic intent.
1. drugs taken under medical prescription
In Bailey 1983, the court of Appeal held that there was a distinction between intoxication arising
form alcohol and certain sorts of drugs to excess, on one hand, and intoxication arising from the
unexpected side effects of therapeutic substances, on the other.
The judge said
The question in each case will be whether the prosecution have proved the necessary elements of
the recklessness.
If the defendant knew that in taking some medicine was likely to make him aggressive,
unpredictable or uncontrolled then it would be open to the jury to find him reckless and therefore
guilty
Bailey 1983

2. Soporific or sedative drugs.

The next situation involves drugs like tranquilliser. In such cases the jury will be directed to
consider whether the taking of the drug was reckless. In Hardie 1985 the court of Appeal quashed
the conviction.
There may be situations where the defendant realises that morphine or Valium instead of soothing
them or calming them down, might induce aggressive unpredictable conduct. If the jury thinks
that such is the case and that the defendant went on to take risk, he could be said to be reckless.

3. lack of knowledge
Intoxication is involuntary when, for example, the defendants soft drink has been drugged or laced
without his knowledge, as in Kingston. It is imperative that the defendant did not know that he was
taking an intoxicating substance. It is no defence for the defendant to claim that he did not know
exactly what effect an intoxicating substance would have on him. In Allen 1988 the defendant drank
some home-made wine that had a high alcohol content. He was convicted of a serious sexual assault
because his drinking was voluntary.
However the defendant may be able to rely upon a defence of involuntary intoxication when his
drink is spiked with an entirely different type of intoxicant. In Eatch 1980.

4. intoxication under duress

This question has not been addressed in the English courts.

Dutch Courage
In Attorney General for Northern Ireland v Gallagher 1963, the defendant decided to kill his wife,
bought a knife and a bottle of whiskey, drank much of the whiskey in order to provide himself with
Dutch courage, then killed her with the knife. He was convicted of murder, the jury decided that
he had formed the specific intent for murder at the time of the stabbing, despite being drunk and this
was upheld by the House of Lords.