Intoxication - Problem question.

Written by Jacqueline Rodgers (April 2007)

Intoxication problem question.
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 policemen 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.

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), if intoxicated, the defendant may not have been able to form the appropriate mens rea, and therefore should be acquitted. However, as indicated by Lord Simon’s statement in DPP v Majewski (1977), 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 were doing or what were its consequences.”
The courts have made a distinction between voluntary and involuntary intoxication. 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). For each of the three scenarios I will consider whether Sushila would be able to use the defence of intoxication.

First scenario
In the first scenario intoxication of the amphetamines and the vodka was 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 in which 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.) Lord Elwyn-Jones LC stated in this case 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.”
In Sushila’s case, the jury should be directed to ignore the effects of intoxication due to it not being 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 charged with murder as the barman died and this 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 intent should be taken into consideration in order to determine whether he had in fact formed the intent necessary to constitute the particular crime.”
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.”
This makes the defence of intoxication available to Sushila in this situation because murder is a specific intent offence. 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.”  
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), it remains for the prosecution to prove beyond all reasonable doubt that, despite the intoxication, the defendant had the necessary intention.
In this scenario Sushila 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 which states:
“A person who without lawful excuse destroys or damages any property belonging to another intending to destroy or damage any such property or being reckless as to whether any such property would be destroyed or damaged shall be guilty of an offence. An offence committed under this section by destroying or damaging property by fire shall be charged as arson.”
Sushila had taken several Valium pills which had had an adverse effect upon her, and thus as in the case of Hardie (1985) in which 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.
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 and it is an issue of involuntary 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.

Conclusion
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 per 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 scenario 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.