Theft problem question - written by Rebecca Grose (March 2006)

Introduction
The possible charges against Sushila in each of the three scenarios all involve the possibility of the use of intoxication as a defence. The term intoxication includes excessive drinking as well as drug taking. The defence of intoxication is used as a way of putting doubt into the jurors mind as to whether the defendant formed the necessary mens rea needed for the particular crime.
The general rule that has been established by the courts is that the defendant will not be able to rely on the defence of intoxication if he has voluntarily put himself into that state and has then gone on to commit a crime. However the exception has been made for the defence of voluntary intoxication to be allowed to be put forward in cases of specific intent crimes but not for basic intent crimes. The Courts have also established a difference between voluntary intoxication and involuntary intoxication. With regards to involuntary intoxication, this can be put forward as a defence to both specific intent and basic intent crimes.

Scenario 1

The first scenario regarding Sushila involves the offence of actual bodily harm, which occurred as a result of her hitting a barman over the head with her laptop computer because he wasn’t serving her fast enough as well as assaulting two police officers who had been summoned to take her away. The issue of voluntary intoxication can be raised here as there are two sources; these are the vodka and the amphetamines. However although Sushila may have been intoxicated at the time of the offence, the crimes of assault occasioning actual bodily harm and actual bodily harm, are both basic intent crimes and therefore the defence of intoxication is not applicable here. This was first seen in the case of DPP v Beard (1920) whereby it was stated that voluntary intoxication cannot be used as a defence to basic offence crimes. Also in the later case of DPP v Morgan (1976), the courts decided that a basic intent crime is one where the mens rea does not exceed the actus Reus of the offence and therefore the defence of voluntary intoxication cannot be used.

These views were affirmed by the House of Lords in the case of DPP v Majewski (1977).  In this case the defendant was convicted of three counts of actual bodily harm and three counts of assault on a police constable. Majewski was a drug addict and claimed that on the day in question he had consumed such large quantities of drugs and alcohol that he ‘completely blanked out’ and had no recollection of committing assaults in the pub in Basildon or later at the police station. The Judge told the jury to disregard the fact that there could be a defence on this ground and the defendant appealed. The House of Lords decided to unanimously uphold the conviction and Lord Salmon stated: ‘If there were 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.’ In my opinion this could mean one of two things. The first is that he believes that there would be a public outcry as they would feel that it would be unfair for him to get a lighter sentence, as it was his choice to drink the alcohol and take the drugs in the first place. Secondly he could mean that there would be more people who would commit crimes whilst under the influence of drugs and/or alcohol knowing that they could get lighter sentencing and possibly an acquittal. This would therefore lead to public disorder. 

It can therefore be seen that in this situation Sushila would not be able to rely on the defence of intoxication for the charge of actual bodily harm due to the fact it is a basic intent crime. Although she would most likely be charged with the offence of assault of occasioning actual bodily harm as she wouldn’t have had the necessary mens rea to be charged with actual bodily harm.

Scenario 2

In the second scenario the offence that Sushila has been charged with is that of murder in relation to the fact that the barman died as a result of the injuries that she inflicted upon him, by hitting him with her laptop computer. Due to the fact that murder is a specific intent crime, the defence of voluntary intoxication can be used by Sushila and if she was successful then this would most probably result in her receiving a manslaughter charge instead of murder. The substitution in convictions would be an advantage to Sushila, due to the fact that this would then give the Judge discretion in his sentencing as opposed to having to give a mandatory sentence of life imprisonment.

If the Crown Prosecution Service believed that Sushila would be successful with the defence of intoxication and would therefore get her sentence reduced to manslaughter, I think that they should charge her with manslaughter in the first instance. This is because, manslaughter is a basic intent crime and therefore the defence of voluntary intoxication cannot arise as a defence and as a result they would be saving time and money as the case would be shorter as the Judge, the legal teams and the Jury would not have to debate and decide as to whether Sushila was intoxicated at the time of the offence.

With regards to the issue of a substitution of sentences, this was seen in the case of Lipman (1970). In this case the defendant and the victim were both addicted to drugs and on the night in question, took LSD. The dead body of the girl was found a day later. She had suffered two blows to the head but had actually died from asphyxia from having part of a sheet crammed into her mouth. The man, who was an American citizen, had returned to his home country but was sent back to face trial for murder. He claimed that he had experienced a bad LSD ‘trip’, during which he had believed that he was descending to the centre of the earth and was being attacked by snakes, which he had tried to fight off. He argued that he had no knowledge of the real events and had not intended to harm the girl. Despite his claims, the jury found him guilty of manslaughter. The Court of Appeal decided to uphold this verdict as it was decided that he could not be found guilty of murder as he had not had the intention to kill or cause grievous bodily harm. However he could be found guilty of manslaughter on the grounds that there had been an unlawful act and a death had resulted.

Based on the case of Lipman (1970), I would expect Sushila to be successful with the defence of voluntary intoxication and have the murder charge substituted with that of manslaughter. However the Jury may decide that the fact that she used the weapon of a laptop computer, she had intended to cause the barman harm although it would be debatable as to whether or not it could amount to an intention to cause grievous bodily harm.

The case of AG for Northern Ireland v Gallagher (1963), is contrasting to that of Lipman (1970), as the defendant was not able to show that he lacked the intention to kill. In this case the prosecution claimed that the defendant harboured a grudge against his wife because she had been instrumental in arranging for him to be detained in a mental hospital. He therefore decided to kill her and bought a knife for this purpose. He also bought a bottle of whisky, either to give himself ‘Dutch Courage’ or to drown his conscience after the event. The jury convicted him of murder but this was quashed by the Northern Ireland Appeal Court. The House of Lords however, decided to restore the conviction and Lord Denning made the following speech: “My Lords, I think the law on this point should take a clear stand. If a man whilst sane and sober, forms an intention to kill, and makes preparation for it, knowing it is a wrong thing to do, and then gets himself drunk so as to give him self 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.” In my opinion this case would not be applicable to Sushila since she did not go to the local bar with the intention to carry out the act of killing the barman. Therefore she did not drink alcohol in order to give herself the Dutch courage to carry out the act as she never intended to commit the crime of murder.

In this situation it can therefore be seen that the defence of voluntary intoxication can be put forward and would most likely be successful as it would be difficult to prove that she intended to cause grievous bodily harm to the barman.

Scenario 3

In this scenario, Sushila set fire to her office, and therefore she would be charged with the defence of arson under the Criminal Damage Act 1971. This is a specific intent crime and would therefore allow the issue of intoxication to be put forward as a defence. However when looking at the facts of the case they are unclear as they state that ‘a colleague had given Sushila several Valium pills’, but does not state whether this was with or without Sushila’s knowledge. This therefore means that they are two different scenarios to consider, one of voluntary intoxication and one of involuntary intoxication.

VOLUNTARY INTOXICATION

If Sushila was given the valium tablets and she took them voluntarily but they had an adverse effect on her, then she may be able to rely upon the defence of voluntary intoxication, provided that she did not form the mens rea for the offence. This was seen in the case of Hardie (1985), where the defendant’s long-term relationship broke down and he was asked to leave the flat that he shared with his girlfriend. He became very upset and during the day took several valium tablets, after being reassured that they would not do him any harm. He later fell asleep and claimed that he could remember very little after this time but while in this state, he started a fire in a wardrobe at the flat he was vacating. The jury found him guilty of arson. The Court of Appeal however went onto quash the defendant’s conviction with Parker L.J stating: “It is true that Valium is a drug and it is true that it was taken deliberately and not taken on medical prescription, but the drug is, in our view wholly different in kind from drugs which are liable to cause unpredictability or aggressiveness. It may well be that the taking of a sedative or soporific drug will, in certain circumstances, be no answer, or example in a case of reckless driving, but if the effect of a drug is merely soporific or sedative the taking of it, even in some excessive quantity, cannot in the ordinary way raise a conclusive presumption against the admission of proof of intoxication for the purpose of disproving mens rea in ordinary crimes, such as would be the case with alcoholic intoxication or incapacity of automatism resulting from the self-administration of dangerous drugs.”

This case would therefore suggest that Sushila would be able to use the defence of involuntary intoxication since she would have not had taken the valium tablets in order to become aggressive or unpredictable, since they are calming drugs. Although she would not be able to use the defence of involuntary intoxication, if she formed the mens rea for the offence.

INVOLUNTARY INTOXICATION

If however she was given the valium tablets without her knowledge and she did not have the necessary mens rea for the offence she would be able to rely upon the offence of involuntary intoxication. If however she had the mens rea then this defence would not be available to Sushila. This was seen in the case of Kingston (1995) where the defendant who was a known paedophile was lured to a flat along with a fifteen year old boy who had been drugged and was asleep on the bed. The defendant was then invited to abuse the boy and for blackmail purposes was photographed and tape-recorded. He claimed that he could not remember anything about the night in question and that his coffee had been drugged, and without this intoxication he would have controlled himself and his tendencies. He was convicted after the jury were told to convict as long as they were sure that despite the effect of any drugs, he had still formed the mens rea of indecent assault. This was later quashed in the Court of Appeal who felt the defence of involuntary intoxication should be open to him. However the House of Lords changed this and restored the conviction as once the intent to commit the crime is proved, intoxication is no defence. In relation to Sushila’s case it would be difficult to prove the intent for arson except the fact she was upset she was passed over for promotion and therefore may have wanted to get revenge against the company. However I think this is unlikely as she would not have taken the valium tablets if she wanted to become aggressive and dangerous as they are publicised as being calming drugs. I therefore think that Sushila would be able to use the defence of intoxication, based on the case of Kingston (1995).

It can therefore be seen from both of these cases that in relation to the offence of arson, Sushila would be able to use the defence of intoxication provided that she did not form the necessary mens rea for the offence. If she formed the mens rea then the defence would fail.

Conclusion

In conclusion, in the first scenario Sushila would not be able to use the defence of intoxication due to the fact that actual bodily harm is a basic intent crime. In the second scenario, it would be likely that Sushila would be successful with the defence of intoxication in relation to the crime of murder, although it would most likely result in a substitute charge of manslaughter. In the third scenario provided that she did not form the mens rea then she would most likely be successful with the defence of intoxication, both if it was voluntary or involuntary.

Bibliography

Roe D. ‘Criminal Law 3rd edition’ – Hodder Arnold (2005)

Storey T. and Lidbury A. ‘Criminal Law’ – Willan Publishing (2004)