Intoxication Problem Question
Written by Lisa Incledon (March 2005)
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.
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In general, to be found guilty of a criminal offence it is necessary for the appropriate mens rea and actus reus of the offence to be proved beyond all reasonable doubt, as in Woolmington v DPP (1935). Thus, the issue of intoxication can cause difficulties since, if intoxicated, the defendant may not have been able to form the appropriate mens rea, and therefore should be acquitted. However, this conflicts with public policy, as indicated by Lord Simon’s statement in DPP v Majewski (1977), that the public would be “legally unprotected from unprovoked violence where such violence was the consequence of drink or drugs having obliterated the capacity of the perpetrator to know what he was doing or what were its consequences.” [1]
In order to avoid this situation the courts have developed a number of principles related to intoxication; drawing a distinction between voluntary and involuntary intoxication and, when considering voluntary intoxication, between crimes of specific intent (for which intoxication may be a defence) and those of basic intent (for which intoxication is not a defence). I will consider whether, based on the principles established by the courts Sushila would be able to use the defence of intoxication in each of the three scenarios.
First scenario
In the first scenario, there are two sources of intoxication; the amphetamines and the vodka. Both were consumed voluntarily and as such issues to do with involuntary intoxication are not relevant to this situation. The main issue when considering voluntary intoxication is the distinction between basic intent crimes and specific intent crimes; in DPP v Majewski (1977) Lord Elwyn-Jones LC stated that “self-induced intoxication, however gross and even if it has produced a condition akin to… automatism, cannot excuse crimes of basic intent such as…assault.” [1]
In the case of DPP v Majewski (1977) the defendant appealed against convictions of assault occasioning actual bodily harm and assault of a police constable in the execution of his duty on the grounds of intoxication, arguing that he was too intoxicated to form the appropriate mens rea. The Court of Appeal dismissed his appeal but certified the question of “whether a defendant may properly be convicted of assault notwithstanding that, by reason of his self-induced intoxication, he did not intend to do the act alleged to constitute the assault…” as one of general public importance to be considered by the House of Lords. The House of Lords upheld the conviction, deciding that assault occasioning actual bodily harm was a basic intent crime and thus intoxication could not be a defence. Lord Elwyn-Jones stated: “…I think it may be helpful if we give the following indication of the general lines on which in our view the jury should be directed as to the effect on the criminal responsibility of the accused of drinks or drugs or both, whenever death or physical injury to another person results from something done by the accused for which there is no legal justification and the offence with which the accused is charged is manslaughter or assault at common law or the statutory offence of unlawful wounding under s.20, or of assault occasioning actual bodily harm under s. 47 of the Offences Against the Person Act 1861. In the case of these offences it is no excuse in law that, because of drink or drugs which the accused himself had taken knowingly and willingly, he had deprived himself of the ability to exercise self-control, to realise the possible consequences of what he was doing or even to be conscious that he was doing it. As in the instant case, the jury may be properly instructed that they “can ignore the subject of drink or drugs as being in any way a defence to” charges of this character.” [2]
Thus, in Sushila’s case, the jury should be directed to ignore the effects of intoxication, as it is not a valid defence to assault occasioning actual bodily harm, a basic intent offence. Therefore, Sushila is likely to be convicted of assault occasioning actual bodily harm, as she definitely cannot use the defence of intoxication.
Second Scenario
In the second scenario, Sushila is once again voluntarily intoxicated, however unlike the first scenario the barman has died and thus she is being charged with murder. The charge of murder, as opposed to actual bodily harm has a considerable impact upon the availability of the defence of intoxication. In the case of Beard (1920), Lord Birkenhead stated: “…where a specific intent is an essential element in the offence, evidence of a state of drunkenness rendering the accused incapable of forming such an intent should be taken into consideration in order to determine whether he had in fact formed the intent necessary to constitute the particular crime.” [1]
This was also affirmed in Bratty (1963), when Lord Denning particularly referred to murder as a specific intent offence, stating: “If the drunken man is so drunk that he does not know what he is doing, he has a defence to any charge, such as murder or wounding with intent, in which a specific intent is essential, but he is still liable to be convicted of manslaughter or unlawful wounding for which no specific intent is necessary.” [1]
Thus, since murder is a specific intent offence, the defence of intoxication may be available to Sushila in this situation.
However, the defence of intoxication is only available where it has prevented the defendant from forming the necessary intention for the offence, in Sheehan and Moore (1975) it was stated that the jury should be directed that: “The mere fact that the defendant’s mind was affected by drink so that he acted in a way in which he would not have done had he been sober does not assist him at all, provided that the necessary intention was there. A drunken intent is nevertheless an intent.” [1 and 3]
The mens rea for murder is malice aforethought; that is the intention to kill or commit grievous bodily harm, and thus the defence of intoxication is only available to Sushila if being intoxicated prevented her from forming the intention to kill or commit grievous bodily harm. However, as in Sheehan and Moore (1975), the onus of proof remains on the prosecution to prove beyond all reasonable doubt that, despite the intoxication, the defendant had the necessary intention. [3]
Thus, in this scenario, it is for the prosecution to prove that Sushila had the mens rea for murder beyond all reasonable doubt, and she may well be able to use the defence of intoxication, since murder is an offence of specific intent. If she is successful with the defence of intoxication then she will be acquitted of murder, but convicted of manslaughter.
Third Scenario
In the third scenario Sushila set fire to her office, and thus she would be charged with the offence of arson under the Criminal Damage Act 1971, section 1 states:
In this scenario, Sushila had taken several Valium pills which had had an adverse effect upon her, and thus as in the case of Hardie (1985), which involved similar facts to this scenario, the issue is one of involuntary intoxication. This is because Valium is a drug which has a ‘soporific or sedative’ effect and thus is treated differently from drugs which have inhibition-lowering or mind-expanding effects. [1]
In the case of Hardie (1985) the defendant took several Valium tablets, unaware of the effect the tablets might have and started a fire in the bedroom of a flat whilst two people were in the sitting room. He was charged with damaging property with intent to endanger life or being reckless whether life would be endangered contrary to section 1 (2) of the Criminal Damage Act 1971. He argued that the effects of the Valium had prevented him from having the mens rea, but the judge directed the jury that as the drug was self-administered this could not provide a defence. The defendant appealed to the Court of Appeal on the grounds of misdirection and his appeal was allowed, Parker L.J. stating: “There was no evidence that it was known to the appellant or even generally known that the taking of Valium in the quantity taken would be liable to render a person aggressive or incapable of appreciating risks to others or have other side effects such that its self-administration would itself have an element of recklessness…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, for 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 or automatism resulting from the self-administration of dangerous drugs.
In the present case the jury should not, in our judgement, have been directed to disregard any incapacity which resulted or might have resulted from the taking of Valium. They should have been directed that if they came to the conclusion that, as a result of the Valium, the appellant was, at the time, unable to appreciate the risks to property and persons from his actions they should then consider whether the taking of the Valium was itself reckless.” [2]
Thus, this case suggests that in this scenario Sushila may be able to rely on the defence of intoxication, provided she did not form the mens rea for the offence. As in Kingston (1995) if she formed the mens rea for the offence, even if she would not have committed the offence had she not been intoxicated, she is still liable; although the prosecution must still prove the necessary mens rea beyond all reasonable doubt.
If she did not form the mens rea, then she may be able to use the defence of intoxication. It is for the jury to decide whether she was reckless in taking the Valium, and if they decide she was not then she can use the defence of intoxication. [1, 3 and 4]
In conclusion, Sushila would be unable to rely on the defence of intoxication in the first scenario, since this involved voluntary intoxication and a basic intent offence, for which intoxication, if voluntary, is not a defence as in DPP v Majewski (1977). In the second situation Sushila would be able to use the defence of intoxication to murder, provided she did not form the necessary mens rea, but would be convicted of manslaughter. In the final set of circumstances it would be likely that Sushila could use the defence of intoxication and be acquitted of arson, provided she did not form the mens rea and the jury do not consider she was reckless in taking the Valium, since unexpected effects of soporific or sedative drugs, taken by the defendant in the belief that they would calm her, are considered to amount to involuntary intoxication.
Lisa Incledon (March 2005).
Bibliography
[1] Storey T. and Lidbury A. ‘Criminal Law’ – Willan Publishing (2004)
[2] Allen M. ‘Elliott and Wood’s Cases and Materials on Criminal Law’ – Sweet and Maxwell (2001)
[3] Herring J. ‘Criminal Law Text, Cases and Materials’ – Oxford University Press (2004)
[4] Roe D. ‘Criminal Law’ – Hodder and Stoughton (1999)