INTOXICATION PROBLEM QUESTION HOMEWORK

BY PAUL GOMM

Sushila was upset when she was passed over for promotion. She had a sleepless night and so took some amphetamines to help her get through the following day. She then visited a local bar and consumed 8 glasses of Vodka in quick succession. She later regained conciosuness 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 ABH 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.

Intoxication Problem Question
A2-6
By Paul Gomm

Introduction
Intoxication has always been an area of the law which the courts have found difficult to decide upon. However the basic idea is that a defence of intoxication will not be available to a person who has voluntarily placed themselves in the intoxicated state. Intoxication does not just cover abuse regarding drinking, it will also include forms of drug taking. Factors such as mistake must also be taken into account when deciding on intoxication. There are two different forms of intoxication and when a case comes before the courts it is necessary to ascertain whether the intoxication was of a voluntary or an involuntarily form.

The Basic Law upon Intoxication - both Voluntary and Involuntary
A basic rule or presumption within the law is that if a person has placed themselves under voluntary intoxication, then they will not be able to use a defence of intoxication as they were aware at the time of what they were doing, and have continued to place themselves within this intoxicated state. This was clearly laid down so that people knew of the law within the case of DPP V BEARD 1920. In this case it was stated that:

“under the law of England as it prevailed until early in the 19th century voluntary drunkenness was never an excuse for criminal misconduct; and indeed the classic authorities broadly assert that voluntary drunkenness must be considered rather an aggravation than a defence”.

We can therefore tell instantly that the courts do not favour those people who place themselves in an intoxicated state and then end up causing some form of criminal activity. They view that this should not and will not be taken and looked at as a “mitigating factor” - that is one which is considered as being a factor which may reduce the likelihood of a sentence of imprisonment or at least reduce the spell. Instead it is seen as an “aggravating factor” - that is one which instead is likely to either increase the sentence of imprisonment or if the offence is lesser they may find themselves being handed a harsher sentence. An example of an aggravating factor is racial hostility or language. If say within an attack on a person the offender displayed racial hostility or used racial abuse then it would quite rightly be taken that this is unacceptable as the person has attacked simply due to racial matters and therefore they are likely to face a harsher sentence. The courts were certainly unwilling to consider that it would actually be available as a defence to a person.
The law has however developed over time and it was decided that when a person has voluntarily intoxicated themselves it may actually be available in cases of specific intent crimes where there is a different degree of mens rea and intention to be proved. In these cases it is held that it is unlikely that, due to the defendants level of drunkenness or their drugged state, they were able to hold the correct degree of mens rea. Instead it is likely that they over reacted and did not possess the full intention to carry out the crime. If this is held as so then they may find that they are able to be given a defence for their crimes. It may not result in a full acquittal however they may find that their sentence is reduced.
The crimes of specific intent which may mean that the defence of consent is available are s18 Grievous Bodily Harm, Theft, Murder, and Aggravated Criminal Damage. These different crimes are held to have a further degree of intention and therefore may find a certain level of a defence of intoxication available.

In crimes of Basic intent defendants will not find themselves so lucky. It was held under the cases of DPP V BEARD 1920 and DPP V MORGAN 1976 that for basic intent crimes the defence of intoxication should not be available. Basic Intent Crimes can be seen in cases such as ABH, S20 Grievous Bodily Harm, Common Assault or Battery (Offences Against the Person Act 1861), Rape, and also in cases of Manslaughter. It is held that in a basic intent crime the “mens rea does not exceed the actus reus of the offence”. [1]
The case of DPP V MAJEWSKI 1977 is of particular importance within this area of law and I shall discuss it in the later scenarios which Sushila has committed.
Involuntary Intoxication is a different matter in hand. It was held that in cases when a person has been intoxicated via another source then they cannot be held guilty as they have the available defence of intoxication. This was clearly affirmed in the case of PEARSON 1835:

“if a person be made drunk by stratagem, or the fraud of another, he is not responsible”

The term Stratagem is defined as “cunning method of achieving something”. [2] An example of when a person may commit something via stratagem is if for example a person spiked another’s drink with the intention for them to then drive whilst under the influence of alcohol and therefore face conviction if caught.
The courts will also consider cases when a drug has had an adverse affect upon a person which could not have been foreseen and which was not expected. I will discuss this further with regard to the 3rd Scenario which concerns Sushila. Now that I have conveyed the basic law with regard to intoxication I will move onto discuss the 3 different scenarios separately. Once finished I will draw a conclusion upon the different issues and scenarios.

The First Scenario
The First Scenario within this is that Sushila had hit the barman over his head and has also assaulted the two police officers involved. Sushila has then due to her actions been charged with the crime of ABH under S47 of the Offences against the Persons Act 1861. Actual Bodily Harm was defined under the case of Chan- Fook 1994 and was held to be “an assault which besides being an assault causes to the victim some injury”. Sushila’s action of hitting the barman over his head with a laptop computer has evidently caused some form of harm (injury) to him and therefore this would amount to the form of Actual Bodily Harm.
However does Sushila have any chance of a defence of intoxication to this crime? We can see from the facts of the case that “she too some amphetamines to help get her through the following day. She then later visited a local bar and consumed 8 glasses of Vodka in quick succession”. Therefore this would amount to Voluntary Intoxication as she has not become intoxicated due to “stratagem, or the fraud of another”. The courts as previously stated are not willing to consider the defence of Intoxication (Voluntary) unless it is of a Specific Intent crime. Sushila’s offence is one of Basic Intent as it is considered to be that of “assault occasioning Actual Bodily Harm”. Basic Intent Crimes are not allowed the defence of intoxication.
This was held to be so in the case of DPP V MAJEWSKI 1977 where the House of Lords reaffirmed there stance upon this area of the law. In this case the defendant was addicted to drugs and when the crimes were committed he had earlier consumed drugs and alcohol in excessive quantities. Majewski committed three counts of Actual Bodily Harm and three counts of assaulting a Police Constable. He was unaware of this a shortly afterwards he “blanked out”. Majewski was convicted of these 6 counts of Actual Bodily Harm and Assault and the judge within the original trial stated that the defendant could have no possible usage of the defence of Intoxication. The case went to the House of Lords were they upheld the trial judges original position holding that he was correct to have instructed the jury in this way. They held that there was no way possible for the courts to hold that a defence of intoxication could be present for the defendant. It was held that if they were to allow the defence and:

“If there was to be no penal sanction for any injury inflicted under the complete mastery of drink or drugs, voluntarily taken, the social consequences could be appalling.” (Lord Salmon)

Therefore the courts were evidently worried that if they were to not find the defendant guilty it may lead to a complete wave of violence and other crimes occurring whilst defendants were under the influence of alcohol or drugs and that they would not be convicted, even though they should have been more careful with what they had done in the first place. It was held that although it did seem unfair not to try those of Specific Intent Crimes in a similar fashion it could lead to completely harsh and seemingly unfair decisions. It was reiterated that it was even more necessary to not allow the defence for Basic Intent Crimes due to the subsequent rise in drug taking and the drug taking culture.
Seemingly a person will be unable to use the defence in cases where they have been intoxicated and have claimed to commit an offence by mistake. This was held to be the case in both that of Fotheringham 1989, and in O’Grady 1987. Fotheringham involved a case where the defendant had raped a 14 year old babysitter who had fallen asleep upon him and his wife’s bed. The defendant was at the time under the influence of alcohol. He claimed that he had mistakenly believed that the girl was in fact his wife. However the courts were unwilling to allow the defendant to escape liability. Similarly, an outcome occurred in the case of O’GRADY 1987 where a defendant had killed his friend whilst intoxicated and claimed that he was doing so in self defence. It was held that the defence of self defence would not stand as the defendant was intoxicated.

Therefore I believe that we can tell from the appropriate law, that Sushila will not be able to use the defence of Intoxication as her actions were one of voluntary intoxication and one of Basic Intent Crimes. She would be convicted (and may find her conviction is greater if it is held as an aggravating factor) of Actual Bodily Harm (with regard to the barman) and two counts of assault (with regard to the police officers).

The Second Scenario
In the second scenario Sushila has committed the crime of murder as when she struck the barman he was killed. Murder is held as being “the unlawful killing of a human being, under the Queens Peace, with malice aforethought” - malice aforethought stands for the intention to commit murder. Murder is also held as being a crime of specific intent as it requires a further degree of intention, in that the defendant must actually have intended to kill another person. In cases of specific intent with regard to intoxication it is held that a defendant cannot be guilty as they have not shown the full and required mens rea for the crime. If it is held that this is so with regard to Sushila then she will be able to have her conviction reduced to that of manslaughter.
This is so under the case LIPMAN 1970 where a defendant struck a girl twice over the head and then crammed a sheet into her mouth thus causing asphyxiation and therefore her death. They had both been under the influence of drugs at the time and the defendant had claimed to believe that she was in fact a snake. He claimed to have no knowledge of what actually occurred and that he did not possess the mens rea. He was convicted of manslaughter and this was upheld as it was stated that if not the defendant could not be found guilty of a crime. Murder required a specific intent which the defendant did not possess and therefore he could not be found guilty of the crime. Manslaughter however could be substituted into its position.
However the result would be different if the defendant was held to have planned to kill before he had intoxicated himself. This was affirmed in the case of ATTORNEY GENERAL FOR NORTHERN IRELAND V GALLAGHER 1963. In this case judge Lord Denning said that:

“My Lords, I think the law on this point should take a clear stand. If a man, whilst sane and sober, forms and intention to kill, and makes preparations for it, knowing it is wrong to do, and then gets himself so drunk as to give himself Dutch Courage to do the killing, and whilst drunk carries out his intention, he cannot rely on this self-induced drunkenness as a defence to a charge of murder, nor even as reducing it to manslaughter”. [1]

We can see from the facts of the case that Sushila has not had the necessary mens rea that is required for her to found guilty of the crime of murder. She lacks the actual intention (“the malice aforethought”) to cause the crime and instead she simply hit the barman over the head. Although her intoxication was voluntary, she did not plan to cause the death and she did not set out with the intention to kill or cause GBH as seen in the case of ATTORNEY GENERAL FOR NORTHERN IRELAND V GALLAGHER 1963. Sushila would not be entitled to a full defence under the defence of intoxication, however she would certainly be given a possible reduced sentence down to the crime of manslaughter. She would be given an acquittal with regard to the charge of murder, and her conviction would be substituted down to the crime of manslaughter - one of Basic Intent where the mens rea does not exceed the actus reus. It is unlikely that the CROWN PROSECUTION SERVICE would consider charging murder unless it really is clear that she had the required mens rea.

The Third Scenario
The 3rd scenario is that a colleague had given Sushila a number of Valium pills which instead of having a calming effect, caused an adverse effect on her. She had later discovered that she had set fire to the office shortly after. We must now examine whether there is any defence available with regard to intoxication for Sushila.
Sushila has set fire to the office and therefore this would amount to the crime of Arson which can be found under S1.3 with added points of S1.1 and S1.2 of the Criminal Damage Act 1971. If the defendant was charged with S1.1 and S1.3 he must:
“destroy property belonging to another by use of fire either intentionally, or recklessly”
For S1.2 and S1.3 the defendant would be required to:
“destroy or damage property by the use of fire, intending by that destruction or damage to endanger life or being reckless whether life is damaged” [1]

Cases of Arson include that of Miller 1983 where the defendant set alight to his bed when he fell asleep smoking. When he awoke he simply moved to another room. This resulted in the fire spreading and eventually resulting in a large degree of damage to property. In this case the defendant was convicted even though he tried to argue that he could not be guilty by omission. Other cases include ELLIOT V C 1983.
Sushila has not voluntarily been intoxicated, even though she took the pills. She has had an adverse effect from the Valium and this has therefore resulted in her acting in the way she did. In cases of “involuntary intoxication” a defendant will not normally be found guilty. A similar case concerning the effects of Valium was seen in the case of HARDIE 1985.
In this case the defendant had taken several Valium pills (as has Sushila) when a relationship he was involved in fell apart. He believed that the tablets would cause him no harm however they resulted in him setting fire to a wardrobe and causing criminal damage by means of Arson. He was convicted at trial however this was in fact quashed. It was held that Valium was in fact “a drug and it was taken deliberately and not taken on medical prescription”. However the courts viewed that it was not a drug that is likely to cause “unpredictability or aggressiveness”. It was a “sedative or soporific drug”. It was therefore held that there was in no way a possibility that this could have been predicted or foreseen and therefore as it was not a dangerous drug and was meant merely for calming purposes, he could not be held to be guilty of the crime of arson. The defence of Involuntary Intoxication was available.
The case of R V KINGSTON 1995 is important when looking at cases of Involuntary Intoxication. The case involved a man who assaulted a boy after being lured into the situation and drugged. The courts in this case made it a clear point that if the defendant had the necessary mens rea, and only actually committed the offence because he had been involuntarily intoxicated then this would act as no defence. This was laid down by Lord Mustill within the House of Lords. It was held that “a drugged intent is still an intent”. [1 & 3]
We can see that in this case Sushila has taking the drugs voluntarily however she did not possess the necessary mens rea to cause the criminal damage by use of fire to the property. Instead what has occurred is that the Valium (a calming drug, or sedative as held under HARDIE 1985) has caused a strange affect to occur which has in turn resulted in her committing the crime of arson. Therefore she can in fact within this case rely upon the defence of Involuntary Intoxication. This should in fact result in her receiving a full acquittal from the crime of arson. Therefore Sushila will not be held guilty.

Conclusion on the Three Scenarios
In conclusion I have examined the different scenarios and have found that there are a number of different outcomes with regard to the defence of Intoxication and Sushila’s offences. In the first instance Sushila is likely to be convicted if both ABH and Assault. In the second instance she will be possibly allowed to have her offence substituted from murder to manslaughter. In the final instance she will find that she is entitled to a full acquittal.
Therefore I have established and answered the different scenarios within the case and have examined the law accordingly.

BIBLIOGRAPHY
[1] Roe, D. “Criminal Law 3rd Edition” 2005, Hodder Arnold
[2] The Oxford Popular English Dictionary, OUP and Parragon, 1998
[3] Herring, J. “Criminal Law, Text, Cases and Materials” 2004, Oxford University Press
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