AO2 Commentary for Intoxication

AO2 Commentary for Intoxication

1. Intoxication is not, in a strict sense, a defence but rather relevant to proving absence of mens rea.

2. Public policy is an important consideration in this defence as intoxication is a major factor in the commission of so many crimes. Statistics suggest half of all violent crimes are committed by the defendant being intoxicated. The annual cost of alcohol related crimes is about £7 Billion. It puts a strain on NHS.

3. It seems that it is indeed public policy that had become more important than legal principle. It is a legal principle that actus reus & mens rea should coincide in Criminal Law. However a decision to drink maybe made several hours before the D commits the actus reus as seen for example in O'Grady. This has not stopped the defence being applied as it is presumably for public policy reasons.

4. Public must be protected from violent drunks but surely it is very rare that D's capacity has been obliterated - so if the matter were left to the jury, the number of cases left to the jury would probably be very small. It is this reasoning that underpins the approach of the courts in Australia etc

5. The recklessness is becoming intoxicated means that D takes general risk of doing something stupid whilst being drunk. At the time of getting intoxicated D has no idea that he will commit an offence. When recklessness had an objective test it would be easier to justify the application of this defence.

6. Some argue that you should never be guilty of a rime if you have no mens rea yet that is how intoxication can operate in crimes of basic intent.

7. The law & public knowledge that there is a need to balance the rights of the defendant & those of the victim. If intoxication were always a defence then the V's rights would not be protected. There would be a perception that justice has not been done.

8. Specific intent crimes like murdr and S18 GBH offer the option of fallback so that you can be convicted of a lesser offence. This means D does not escape liability but is charged with a lesser offence requiring a lesser mens rea. However, this has the weakness that fallback is not always available as an option so leading to an inconsistent rule. E.g. Theft = no fallback

9. Critics argue that where a defendant inhibitions are broken down by being involuntarily intoxicated, the defence should be allowed. This happened in Kingston where he was not blamed for the intoxication yet convicted. This appears quite unfair but also suggests that he was really convicted because of the unpleasant nature of his crime. Had it been a different crime, might he have been acquitted.

10. Terms of basic and specific intent are confusing (Heard), misleading and should be abandoned. Judges agree that the distinction exists, they fail to agree on a definition of basic & specific intent. There is no dingle uniform test for deciding if an offence is one of basic or specific offence.

11. Fotheringham can be criticised. The accused did not intent to have unlawful sex. He intented to have sexual intercourse with his wife. That was lawful. His mistake was as to the identity of the woman and drunkenness explained why he made the error.

12. Subjectivist = this would be public safety at risk as dangerous people would be able to rely on voluntary intoxication to escape criminal liability. Such behaviour needs to be punished. The absolutist approach would lead to potential hardship & injustice.

13. The fact that intoxication is not allowed where a mistake is committed. E.g. O'Grady is surely right as there would be public outrage if D's escaped liability but there does seem to be an exception in cases of criminal damage.

14. The general feeling however is that the defence operates fairly & without undue difficulty & that is why it is resisted attempts to reform it. It is a compromise solution. An alternative or softer approach could be to apply the Richardson & Irwin approach

15. Some argue that there is no difference between recreational drugs & prescription drugs like Hardie. But this is difficult question as it seems harsh to penalise a defendant who took a prescribed drug & experienced a reaction.