Intoxication – Problem Question
Written by Ms Shazneen Munshi (March 2006)
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 tow 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:
Introduction
In this essay, I am going to advise Sushila whether the defence of intoxication would be available to her in relation to the following three scenarios which involve her being charged with actual bodily harm, murder and arson. Firstly, the term ‘intoxication’ includes both excessive drinking and various forms of drug taking. The defence of intoxication acts as a means of placing doubt into the jurors minds as whether the defendant formed the necessary mens rea required for a certain crime. In English Criminal Law, the defendant can only be convicted if it is proven beyond all reasonable doubt that he/she committed the actus reus of the offence and possessed the requisite mens rea, as established in Woolmington v DPP (1935). This rule can be further substantiated by the Latin maxim, ‘actus non facit reum nisi mens sit rea’, which has been a bastion of the English Legal System since quoted by Coke in 1797 and translates to ‘an act is not criminal in the absence of a guilty mind’. Therefore, the defence of intoxication can pose difficulties since the defendant may not have been able to form the appropriate mens rea, if intoxicated, and so, should be acquitted on the basis of the above legal rules. However, it can be seen that the law conflicts with public policy, as Lord Simon stated in DPP v Majewski (1977), that without special rules for intoxicated defendants, 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”. However, the courts have developed several principles related to intoxication in order to prevent defendants being acquitted merely because their intoxication was so extreme that they did not foresee the consequences. These include drawing a distinction between voluntary and involuntary intoxication and, when considering the latter, between crimes of specific intent (for which intoxication may be a defence) and basic intent (for which intoxication is not a defence). Thus, I will consider whether Sushila would be able to plead the defence of intoxication in each of the three scenarios, based on the principles established by the courts.
First Scenario – availability of the intoxication defence relating to the charge of actual bodily harm
In the first scenario, there are two sources of intoxication; the amphetamines and the vodka. However, what now needs to be ascertained when looking at the issue of intoxication as a defence, is whether the intoxication was voluntary or involuntary. In this instance, Sushila’s intoxication was voluntary as she put herself in an inebriated state by consuming an excessive quantity of drink and drugs, before committing the offence of actual bodily harm. In addition, when considering voluntary intoxication the distinction between specific intent and basic intent crimes needs to be addressed, since in DPP v Beard (1920) Lord Birkenhead stated that intoxication cannot be used as a defence for crimes of basic intent. Unfortunately, as Sushila has been charged with actual bodily harm which is classified as a basic intent crime, the defence of intoxication is not available to her. Moreover, this was confirmed in the case of Bratty (1963), where Lord Denning stated that,: “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 specific intent is essential, but he is still liable to be convicted of manslaughter or unlawful wounding for which specific intent is necessary.” Furthermore, the House of Lords further re-affirmed the view that drunkenness could not be used as a defence for crimes of basic intent in DPP v Majewski (1977), in which Lord Elywn-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.” In this case, the defendant took part in a 36-hour drugs and drink marathon in which he consumed a combination of amphetamines (speed) and alcohol. On the Monday evening he became involved in a pub brawl and assaulted a customer, the manager and several police officers. He was convicted of three counts of assault occasioning actual bodily harm and three counts of assault on a police constable in the execution of his duty. Majewski claimed that on the day in question, he was too intoxicated to form the appropriate mens rea and so was prevented from foreseeing the consequences of his actions. However, the Court of Appeal dismissed his plea and the House of Lords unanimously upheld the conviction, with Lord Elywn Jones stating: “… 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.” Therefore, as a result of the above case law and the model direction to be given to the jury to ignore the effects of intoxication, intoxication is not a valid defence to a basic intent crime such as assault occasioning actual bodily harm. Thus, Sushila is most likely to be convicted of assault occasioning actual bodily harm as she unquestionably cannot plead the defence of intoxication.
Second Scenario - availability of the intoxication defence relating to the charge of murder
In the second scenario, Sushila has been charged with murder for the death of the barman and once again, she is voluntarily intoxicated. However, the charge of murder, as opposed to actual bodily harm, has a significant bearing upon the availability of the defence of intoxication since it is a specific intent offence. 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.” This was also confirmed in the case of Bratty (1963) in which Lord Denning expressly referred to murder as a specific intent crime, 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 specific intent is essential, but he is still liable to be convicted of manslaughter or unlawful wounding for which specific intent is necessary.” Thus, as murder is a specific intent offence, Sushila may be able to rely on the defence of intoxication. However, the intoxication defence is only available in situations where it has prevented the defendant from forming the necessary mens rea for the offence, as illustrated by the case of Sheehan and Moore (1975), in which 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; the intention to kill or commit grievous bodily harm and subsequently, the defence of intoxication is only available to Sushila if her intoxicated state prevented her from forming the necessary intention. Nevertheless, the burden of proof rests on the prosecution to prove beyond all reasonable doubt that, despite intoxication, the defendant (Sushila) had the requisite mens rea; the intention to kill or cause grievous bodily harm and that death or serious injury was a virtual certainty, as per Woolin (1996). Furthermore, it can be seen that if the defendant is voluntarily intoxicated and lacks the mens rea of the offence, then the effect of the law is that such a defendant will be deemed reckless. Thus, with regards to specific intent crimes, the defendant will be acquitted of an offence requiring intent (e.g. murder), but in most cases he will be convicted of a lesser offence which requires recklessness (e.g. manslaughter). This was affirmed in the case of Lipman (1970), where the defendant and the victim, who were both addicted to drugs, consumed some LSD on the night in question. A day later, the dead body of the victim was discovered and medical evidence showed that she had died of asphyxia as a result of a sheet being crammed into her mouth. At the trial, the defendant claimed that he had experienced a bad LSD ‘trip’, during which he believed that the victim was a snake in the centre of the earth, attacking him. He argued that he had no knowledge of the real events and had not intended to harm the girl. However, the jury found him guilty of manslaughter which was upheld by the Court of Appeal. The court decided that he could not be convicted of murder, a specific intent crime, if the intention to kill or cause grievous bodily harm could not be established. Although, they did believe that he could be found guilty of manslaughter as an unlawful act had resulted in the death of the victim. Therefore, in this scenario, the onus is on the prosecution to prove beyond all reasonable doubt that Sushila had the mens rea for murder, and the defence of intoxication may be available to Sushila as murder is a specific intent crime. Moreover, the case of Lipman (1970) illustrates that if Sushila is successful with the defence of intoxication, she will then be acquitted of murder but convicted of manslaughter as the facts infer that she did not have the intention to kill or cause grievous bodily harm (i.e. the mens rea for murder).
Third Scenario – availability of the intoxication defence relating to the charge of arson
In the third scenario, Sushila has set fire to the office and so, she would be charged with the offence of arson under sections 1(2) and 1(3) of the Criminal Damage Act 1971 which state:
In this scenario, Sushila had taken several Valium pills which had an adverse effect upon her and thus, the issue of involuntary intoxication arises, as in similar the case of Hardie (1985). This is due to the fact that the intoxicating substance, Valium, is a drug which has a ‘soporific or sedative effect’, rather than an inhibition-lowering (e.g. alcohol) or mind expanding (e.g. LSD) effect. Therefore, the courts treat Valium differently from the latter drugs, even if taken deliberately, if it can be shown that the defendant believed that he was taking a drug to calm himself when, in reality, it had the opposite effect. This applies in cases of both basic and specific intent. Thus, in Sushila’s case, if she had accepted the Valium pills in the common belief that they had a calming effect, without realizing the improbable risk that they may actually induce ‘‘aggressive, unpredictable conduct’, she may be able to rely on the defence of intoxication. This was demonstrated in the case of Hardie (1985), in which the defendant’s long term relationship had broken down and he became depressed when asked to move out of the flat he shared with his girlfriend. Prior to leaving, he took several Valium tablets, after being reassured that they would not do him any harm. He later fell asleep and started a fire in a bedroom wardrobe, whilst two people were in the sitting room. He was charged with damaging property with the 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 tablets had prevented him from forming the appropriate mens rea. However, the judge directed the jury to ignore the effects of the tablets since the drug was self-administered and so, this could not provide a defence. Nevertheless, the Court of Appeal quashed the conviction, with Lord 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.” Therefore, this case implies that the defence of intoxication may be available to Sushila, provided that she took the pills without recognizing the risk and did not form the mens rea for the offence. However, if the jury believes that the Sushila was aware of the risk of taking the Valium, but went ahead with that risk anyway, they may find her to be reckless and thus, she cannot use the defence of intoxication.
Furthermore, the facts of the case state that ‘a colleague had given Sushila several Valium pills’ and thus, it is not clear whether the Valium pills were administered to Sushila with or without her knowledge. In Pearson (1835), it was stated that ‘if a party be made drunk by stratagem, or the fraud of another, he is not responsible.’ This idea has been developed through several cases and it is now held that if the intoxication negatives mens rea he is entitled to an acquittal, but, if not, he remains liable, even though he would not have acted as he did had he remained sober. Therefore, if Sushila had 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. This principle is illustrated by the case of Kingston (1995), where the defendant, who was known to have paedophiliac tendencies, was lured to a flat along with a fifteen-year old boy. The latter had been drugged and was asleep on the bed. The defendant was then invited to abuse the boy and was photographed and taped for blackmail purposes. He claimed that he could not remember anything about the night in question, that his coffee had been drugged and that without this intoxication, he would have been able to control himself. Kingston was convicted following a direction that the jury could convict the defendant if they believed that he had still formed the mens rea of indecent assault, despite the effect of any drugs. His conviction was later quashed by the Court of Appeal who felt that the defence of involuntary intoxication should be open to him. However, the House of Lords overturned this decision, deciding that ‘a drugged intent is still an intent’, and once the intent to commit a crime is proved, intoxication is no defence. Thus, with regard to Sushila’s case it would be difficult to prove the intent for arson, except for the fact that she was upset when she was passed over for promotion. In addition, if the Valium tablets had been administered to Sushila without her knowledge and she had not formed the mens rea for the offence, she would then be able to rely on the defence of intoxication in this situation. However, if she had formed the mens rea for the offence, even though she would not have committed the offence had she been sober, she would still be liable and thus, the defence of intoxication would be unavailable to her.
Conclusion
In conclusion, I would advise Sushila that she would be unable to rely upon the defence of intoxication in the first scenario, since whilst voluntary intoxicated she committed a basic intent offence (assault occasioning actual bodily harm), for which intoxication, if voluntary, is not a defence as illustrated by the case of DPP v Majewski (1977). However, in the second situation, the defence of intoxication would be available to Sushila, as although she was voluntarily intoxicated, she was charged with a specific intent crime (murder), for which intoxication is a defence, as affirmed in the cases of Beard (1920), Bratty (1963) and Sheehan and Moore (1975). Furthermore, provided that Sushila did not form the necessary mens rea for this offence, she would be acquitted of murder but convicted of manslaughter, as in Lipman (1970). Finally, in the third scenario, Sushila could rely on the defence of intoxication and be acquitted of arson, provided that she did not form the mens rea of the offence and the jury do not believe she was reckless in taking the Valium, since unexpected effects of soporific or sedative drugs such as Valium, taken by the defendant in the belief that they would calm her, are considered to amount to involuntary intoxication (Hardie (1985)). Thus, the defence of intoxication would be available to Sushila if she had consumed the pills without realizing the risk that they may actually induce ‘aggressive, unpredictable conduct’. In addition, if the Valium tablets had been administered to Sushila without her knowledge and she had not formed the mens rea for the offence, she would then be able to rely on the defence of intoxication in this situation (Pearson (1835)). However, if she had formed the mens rea for the offence, even though she would not have committed the offence had she not been intoxicated, she would still be liable and thus, the defence of intoxication would be unavailable to her, as illustrated in Kingston (1995).
Bibliography
‘Criminal Law 3rd Edition’ by Diana Roe (2005) – Hodder and Stoughton
‘Criminal Law, Text, Cases and Materials’ by Jonathan Herring (2004) – Oxford University Press
‘Criminal Law Third Edition’ by Tony Storey and Alan Lidbury (2004) – Willan Publishing
‘Elliot and Wood’s Cases and Materials on Criminal Law Eighth Edition’ by Michael J Allen (2001) - Sweet and Maxwell
Woolmington v DPP (1935)
DPP v Majewski (1977)
Beard (1920)
Bratty (1963)
Sheehan and Moore (1975)
Woolin (1996)
Lipman (1970)
Hardie (1985)
Pearson (1835)
Kingston (1995)
Sections 1(2) and 1(3) of the Criminal Damage Act 1971