English Legal System: Intoxication in Criminal Law Defences for Offences Against the Person.
Created | Updated Jul 6, 2002
This can apply when the defendant is intoxicated through drink or drugs. The rules are different depending on whether the defendant has chosen to get intoxicated (voluntary intoxication) and when he has become intoxicated through no fault of his own (involuntary intoxication), by having his drink spiked for example.
Voluntary Intoxication
Regarding the general defence of voluntary intoxication, the law takes the view that if you get yourself drunk or otherwise, then you should face up to responsibilities. Crimes of specific intent are ones like murder and s.181Grievous Bodily Harm, that require the defendant to actually intend to do the forbidden act, recklessness will not be enough. Basic intent crimes are ones such as s.202 GBH or Actual Bodily Harm where intent or recklessness will suffice. So if the defendant can prove that he was so drunk when he committed the offence that he was incapable of forming the necessary "guilty mind", he can use his intoxication as a partial defence to crimes of specific intent. However it will be only a partial defence as a defendant charged with s.18 GBH who successfully raises the defence of voluntary intoxication will still be liable for s.20 and a defendant charged with murder could still be liable for involuntary manslaughter.
This approach was shown in R v Majewski 1977.3 The courts have made an exception to the rule developed in Majewski. If the defendant had the mens rea of the offence before the crime and then deliberately got drunk to give himself Dutch Courage to allow him to go through with the crime, then the defence of voluntary intoxication will not be available. In Attorney-General for Northern Ireland v Gallagher 1963 the defendant decided to kill his wife so he went out and bought a knife and a bottle of whisky. He got drunk before he killed her to help him do the deed. He argued that at the time he committed the offence he was unable to form the necessary mens rea of intent. Lord Devlin, in this case argued,
'The wickedness of his mind before be got drunk is enough to condemn him, coupled with the act which he intended to do and did do. '
Involuntary Intoxication
The law takes a different view to involuntary intoxicated defendants, and if such defendants are incapable of forming the necessary mens rea (intent, or "guilty mind") then it can be a full defence for both specific and basic intent crimes. However, the defence will NOT be available to them if they had the mens rea, but wouldn't have if they hadn't been intoxicated, shown in R V Kingston 1994.4
Diminished Responsibilty (only a defence to murder)
The defence is outlined in s.2 of the Homicide Act 1957,
'Where a person kills or is a party to a killing of another he shall not be convicted of murder if he was suffering from such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury) as substantially impaired his mental responsibility for his acts and omissions in doing or being a party to the killing.'
There a 3 key elements to this offence:
1. The defendant must be suffering from some abnormality of mind,
2. Caused by arrested or retarded development, or any inherent causes, or induced by disease or injury,
3. Which results in substantial impairment of his mental responsibility.
For the general defence of diminished responsibility, intoxication will NOT count among the specified causes outlined in the Act (e.g. disease/injury) to show a defendant had an abnormality of mind as is necessary in proving a defence of diminished responsibilty, and therefore the defence of diminished responsibility will not be available to defendants. However, surprisingly, if the defendant is suffering alcoholism, then drinking could be taken into account as the cause of the abnormality of mind.
If a defendant is drunk at the time of a killing, and is wishing to use the defence of diminished responsibility, then his drunkenness should be ignored by the jury, and the defence will be available to him only if the defendant has an abnormality of mind resulting from one of the specified causes in statute law. The jury must be convinced that the defendant would have committed the crime in a sober state, and would still have the defence of diminished responsibility if sober. Here, an objective test is being applied, and the defendant's actions are being compared to that of the reasonable sober man.
Provocation (only a defence to murder)
For the general defence of provocation, the reasonable man, objective test has been made much more generous to defendants and now ANY characteristic of the defendant can be taken into account when applying the test. However, the reasonable man should not be drunk, even if the defendant was.
Therefore the defence may still be available to intoxicated defendants, but when being tested objectively, they will be compared to the sober man. Their drunkenness could cause the jury to decide against allowing the defence because the sober man would not have acted in a way in which the drunken defendant did.
Mistake
It is sometimes possible for the defendant to show that because of a mistake he did not have the requisite mens rea for the particular offence. For example if a defendant mistakenly believes a person is dead and proceeds to throw them in the river resulting in their death he cannot be guilty of murder. The mens rea ('guilty mind') of murder is intention to kill or cause grievous bodily harm and because of his mistake the defendant could not have satisfied the mens rea.
A defendant cannot use the general defence of mistake if he/she made the mistake as a result of voluntary intoxication. Like the defence of voluntary intoxication, this reflects the Law's view that if you get yourself drunk you should be prepared to pay for the consequences.
Insanity
The rules by which a defendant's sanity is judged are contained in the M'Naghten5 rules developed in the 19th century.
Insanity is a defence completely unavailable to intoxicated defendants, as the disease of the mind cannot be the result of an external factor, R V Sullivan.
Automatism
This is sometimes referred to as non-insane automatism to distinguish it from the insane automatism that is defined as insanity as in the case of the epileptic defendant in R v Sullivan considered above.
If the actus reus (the guilty action, or omission)was performed somehow involuntarily then the defendant can rely on the defence of automatism. This is a complete defence and will absolve the defendant from all liability. But not every involuntary act will amount to a defence of automatism. Lord Denning, in R v Sullivan (above) went on to give a list of exceptions where an involuntary act would not count as automatism including, not remembering the action afterwards and being unable to control an impulse to perform the action. An extract from the judgment follows:
'No act is punishable if it is done involuntarily and an involuntary act in this context - some people nowadays prefer to speak of it as 'automatism' - means an act which is done by the muscles without any control by the mind such as a spasm, a reflex action or a convulsion; or an act done by a person who is not conscious of what he is doing.....to prevent confusion it is to be observed that in the criminal law an act is not to be regarded as an involuntary act simply because the actor does not remember it...Nor is an act to be regarded as an involuntary act simply because the doer could not control his impulse to do it.'
Automatism will be refused as a defence for intoxicated defendants as the courts are unwilling to allow the defence of automatism if the defendant is somehow to blame for the cause of the automatism (self-induced automatism).
Self Defence
This defence is provided in s.3(1) of the Criminal Law Act 1967,
'A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large. '
Prevention of crime would include self-defence where you were trying to prevent an assault against you. the defendant cannot argue that he thought he was being attacked because he was drunk at the time. The law is not at all generous to voluntarily intoxicated defendants. The general rule is that if you voluntarily get drunk you must accept the consequences of that and will be judged according the standards of a sober man, as ruled in R v O'Connor 19916.
1 Of the Offences Against the Person Act2Offences Against the Person Act3In this case the defendant went on what young people sometimes describe as 'a bender.' He had spent 24 hours drinking and taking drugs and ended up smashing windows and attacking a policeman. He woke up the next day unable to remember the incident at all. He argued that as he could not remember the events he could not have had the necessary mens rea in order to be liable for them. He was convicted because he was charged with offences of basic intent.4In this case the defendant's coffee was spiked with drugs. He had previous convictions for paedophilia and went out an indecently assaulted a young boy. He argued he would not have done so if he had been sober. The House of Lords upheld the conviction arguing that the defence of involuntary intoxication was only available to defendant's who were unable to form the mens rea because of intoxication, not those who formed it because they were intoxicated. 5M'Naghten suffered from paranoid delusions that Tory party politicians were trying to kill him. He tried to shoot the then Tory party Prime Minister but missed and killed his permanent secretary. M'Naghten was found not guilty by reason of insanity and the M'Naghten rules were developed through questions asked in the House of Lords after the murder. 6In R v O'Connor 1991 the defendant had mistakenly believed he was being attacked in a pub, because he was drunk. He responded by head-butting the victim three times. The victim died of his injuries and the court refused to accept his defence of self-defence because although his belief may have been honestly held it was induced by drinking.
