Sushila was upset when she was passed over for promotion. She had a sleepless night so took some amphetamines to help her get through the following day. She then visited a local bar and consumed eight glasses of vodka in quick succession. She later regained consciousness at Billericay police station and was told that she had hit the barman over the head with her laptop computer because he wasn't serving her quickly enough and had assaulted the two policeman who had been summoned to take her away. Advise Sushila who has been charged with actual bodily harm, in relation to the defence of intoxication.
Decide how your answer would differ in the following unrelated circumstances:
a) the barman died and Sushila was charged with his murder.
b) A colleague had given Sushila several Valium pills, which had an adverse effect on her. She later discovered that she had set fire to the office before she left.
Written by Sarah Brimacombe (Nov 2007)
Introduction
In this essay I will examine the case above and advise Sushila on her possible option in relation to intoxication. There are three possible outcomes from the three scenarios given and I will go on to discuss this in further detail and give evidence for my advice through cases.
Intoxication
This covers intoxication by alcohol, drugs or other substances, such as glue sniffing. Intoxication does not provide a defence as such, but is relevant as to whether the defendant has the required mens rea for the offence. If he does not have the required mens rea because of his intoxicated state then he may be not guilty.
Whether the defendant is guilty of not depends on (1) whether the intoxication was voluntary or involuntary and (2) whether the offence charged us one of specific or basic intent.
Specific intent offences are generally those which require specific intention for their mens rea. It is difficult to whether a crime is specific or basic intent. The four generally considered specific are murder, s.18 Offences Against the Person Act 1961, theft, robbery and burglary. All other crimes are basic intent. These are offences for which recklessness is sufficient for mens rea. Some examples are manslaughter, s.20 and s.47 of OAPA and assault and battery.
Voluntary Intoxication
Voluntary intoxication is where the defendant has chosen to take the intoxicating substance. This can be drinking alcohol, taking illegal drugs or other intoxicating substances. It can occur where the defendant knows the effect of a prescribed drug will be to make him intoxicated.
Voluntary Intoxication and Specific Intent
Voluntary intoxication can negate the mens rea for a specific intent offence. If the defendant is so intoxicated that he had not formed the mens rea for the offence, he is not guilty. This rule comes from the case of DPP v Beard (1920). In this case Beard had been charged with murder and had put forward as his defence the face he had been too intoxicated to have formed the means rea for murder. He was convicted but on appeal, Lord Birkenhead considered previous decisions and stated:
‘Where a specific intent is an essential element in the offence, evidence if a state of drunkenness rendering the accused incapable of forming such an intent should be taken into consideration in order to determine where he had in fact formed the intent necessary to constitute the particular crime’.
Lord Birkenhead then stated the rule which still stands today:
‘If he was so drunk that he was incapable of forming the intent required, he could not be convicted of a crime which was committed only if intent was proved’.
An example of a case where it was found that the defendants were to drunk that they did not have the mens rea for murder is that of Sheehan and Moore (1975). The defendants were very drunk when they threw petrol over a tramp and set fire to him. They were too drunk to have formed any intent to kill or cause grievous bodily harm. It was held that because they did not have the mens rea for murder their intoxication was a defence to that offence. However they were found guilty of manslaughter as that is a basic intent offence.
Where the defendant had the necessary mens rea despite his intoxicated state, then he is guilty of the offence. The intoxication does not provide a defence. It has been held that a drunken intent is still intent. This was shown in A-G for Northern Ireland b Gallagher (1963) in which the defendant decided to kill his wife. He bought a knife to do the killing and a bottle of whisky. He drank a large amount of the whisky before killing his wife. His conviction for murder was upheld. He had the intent to kill his wife before he had become intoxicated; therefore he had required the mens rea for murder and was therefore guilty.
If the barman had died and Sushila had been charged with murder then it is likely she would be able to use the defence of voluntary intoxication as a defence and be found not guilty. If it can be proven that she was so drunk she didn’t know what she was doing then it shows a lack of intent and as murder is a specific intent crime, then she cannot be guilty because she did not form the mens rea as shown in Beard.
Voluntary Intoxication and Basic Intent
Where the offence is one of basic intent then intoxication is not a defence. This is because voluntarily getting intoxicated is considered a reckless course of conduct and recklessness is enough to constitute the necessary mens rea. The case that shows this is DPP v Majweski (1977). In this case the defendant had taken both alcohol and drugs. In a very intoxicated state he then attacked people in a public house and also the police officers who had tried to arrest him. He was convicted of three offence of assault occasioning actual bodily harm and three of assaulting a police officer in the execution of his duty. The House of Lords upheld the conviction. His intoxicated state was not a defence as the House of Lords said:
‘It is a reckless course of conduct and recklessness is enough to constitute the necessary mens rea.’
This case is very similar to Sushila’s. She got drunk voluntarily and her offences of actual bodily harm are basic intent crimes. This means, according to Majweski, that she would not be able to use intoxication as a defence. It is seen she has been reckless in getting drunk and therefore she has the necessary mens rea for the offence.
Involuntary Intoxication
Involuntary intoxication covers situations where the defendant did not know he was taking an intoxicating substance. This may be where for example, a soft drink has been ‘laced’ with alcohol or drugs. It also covers situations where prescribed drugs have an unexpected effect on making the defendant intoxicated.
The test is; did the defendant have the necessary mens rea when he committed the offence? If so, it was decided in Kingston (1994) that he will be guilty. In this case the defendant’s coffee was drugged by someone who wanted to blackmail him. He was then shown a 15 year old boy who was asleep and invited to abuse him. The defendant did so and was photographed by the blackmailer. The House of Lords upheld his conviction for indecent assault. They held that if a defendant had formed the mens rea for an offence then the involuntary intoxication was not a defence. This is so even though the defendant would not have committed the offence without the intoxication lowering his resistance to committing the offence.
Where however, the defendant did not have the necessary intent he will be not guilty. He had no mens rea and so cannot be guilty of a specific intent crime. Neither can he be guilty of a basic intent crime. This is because the defendant has not been reckless in getting intoxicated. An example of this is in the case of Hardie (1985). In this case the defendant was depressed because his girlfriend had told him to move out of their flat. He took some Valium tablets which had been prescribed for his former girlfriends; she encouraged him to take the tablets, stating that it would calm him down. He then set fire to a wardrobe in the flat. He said he did not know what he was doing because of the Valium. He was found guilty of arson but the Court of Appeal later quashed that decision adding that the defendant had not known the Valium would have that effect on him.
In the scenario where a colleague had given Sushila several valium tablets and they had had an adverse effect and caused her to set fire to her office, she may be able to use the defence of involuntary intoxication and be found not guilty. If Sushila was unaware of the effects it would have on her, and it was likely this would be the case as Valium is widely known to calm people down, she would be found not guilty of arson as shown in the case of Hardie.
Conclusion
In conclusion when looking at the three different scenarios in the question Sushila is varied in her ability to rely on intoxication as a defence to her offences.
When she is charged with assault occasioning actual bodily harm, she is unable to use the defence of intoxication. She became drunk voluntarily and the offence is one of basic intent. This is shown in Majweski (1977) as getting drunk voluntarily is seen as reckless and this means she has the necessary mens rea for the offence.
When she is charged with murder it is possible for the defence of intoxication to be used. This is due to the fact murder is a specific intent crime and as shown in Beard (1920), if Sushila is too drunk to have formed the mens rea for murder then she cannot be guilty of the offence.
Finally if Sushila had set fire to the office under the influence of Valium pills given to her by a colleague, then she could rely on the defence of intoxication. This is due to the fact her intoxication was not voluntary as she had no idea the Valium would affect her in that way. This is backed up with the case of Hardie (1985).