Evaluation of Intoxication (Involuntary Intoxication (Strength? - it…
Evaluation of Intoxication
Based on policy / public interest - ensures that the public are protected and that intoxication does not provide an excuse for criminal activity. There is a clearly established link between crime and intoxication (costing an estimated £8 billion per year; 45% of men arrested for rape are intoxicated; in homicide two-thirds of offenders are intoxicated). In the majority of cases intoxication is not a defence. At the same time the law recognises the need to protect those who are not at fault - those who are involuntarily intoxicated.
The distinction between crimes of specific intent and basic intent is based on policy rather than principle. If a defendant fails to form the mens rea for an offence, it seems illogical that they have a defence to some offences (those of specific intent) but not others (those of basic intent). In relation to those offences where intoxication must be established, and the defendant does not have that specified intention the law is logical - as seen in the case of Lipman (the LSD case)
There is no clear definition of specific and basic intent. There are differing explanations provided by judges and this causes confusion. This is why the Law Commission would provide a list of states of mens rea (integral fault elements) that are required before an offence can be committed. In other words, where an absence of mens rea due to intoxication could prevent liability.
The LC is opposed to a subjectivist approach where an absence of MR would prevent liability in all cases. It is also opposed to an absolutist approach where it would not be available in any situation. Instead it prefers a framework where the defence could be available in limited circumstances.
Inconsistency in how intoxication operates - that for fatal and non-fatal offences where voluntary intoxication is available as a defence (specific intent offences such as murder or s18) there will be a corresponding basic intent crime with which the defendant can be convicted (e.g. manslaughter or s20). The same is not true in relation to property offences e.g. theft (a specific intent crime) there is no corresponding basic intent offence with which the defendant can be convicted.
Gavin Dingwell argues that a person making a drunken mistake is in a worse position that someone who commits a crime simply when they are intoxicated. In the context of consent the defence appears to be available even where the defendant is intoxicated (Aitken; Richardson & Irwin). Again, there appears to be an inconsistency in relation to consent - intoxicated mistake as to a belief in consent does not prevent the defence from being available despite the fact that a drunken mistake is not available in most other areas of criminal law.
Strength? - it protects those not at fault who have not voluntarily become intoxicated. The rules are more logical - that if the defendant fails to form the MR of any crime, they cannot be liable.
Adverse reactions - The decision in Hardie is too generous to defendants (Law Commission). Hardie was reckless in taking the valium and so should not be able to plead the defence.It should be restricted to those who have an adverse reaction after taking prescribed medicine or medicine which does not require a prescription.
The debate over the decision in Kingston. The Court of Appeal took a different view from the House of Lords (now Supreme Court). Academics such as Professor Clarkson were critical of the decision in Kingston - he argued that it was unfair to convict someone who only committed a crime because another 3rd party lowered their powers of self control. The Law Commission disagrees. It argues that public policy means that Kingston should be liable. It could also be argued that Kingston is raising an issue of his ability to control his actions rather than an issue relating to mens rea.
The law does not treat a mistake as to the strength of a drink as involuntary intoxication (R v Allen). This helps ensure that the public are protected and intoxication is not exploited as a defence.
The difficulty highlighted in Eatch where the def was both voluntarily and involuntarily intoxicated. It is difficult for a jury to determine whether the behaviour of the defendant is due to the vol or invol intoxication.
The LC has proposed a presumption that any intoxication is voluntary unless the defendant shows otherwise. This seems appropriate and will help ensure the defence is not exploited or used as an excuse.
Proposals for reform
Butler Committee (1975) - proposed the creation of an offence of dangerous intoxication where the defendant committed a crime but was so intoxicated they failed to form the mens rea for that offence. It would carry a max 1 year sentence for a first offence, rising to a max of 3 years for further offences.This might correspond with common sense and logic but causes problems with the principle of fair labelling (that criminal law should identify the fault and blameworthiness of the offenders behaviour and that an appropriate sentence should be imposed to reflect the seriousness of the crime).Critics argue that having one offence would lump all offenders together despite the vastly different offences they may have committed. Professors Smith and Gladstone Williams both supported the proposal of a separate offence on the basis that it provided an alternative to convicting a defendant of an offence requiring recklessness when they were not in fact reckless.
Law Commission (2009 Report) - would abolish the basic / specific intent distinction and provide a list of integral fault elements that have to be proven in criminal law (as explained above). It would also change the law relating to adverse reactions (Hardie decision).
Alternative approaches taken in New Zealand (no specific / basic intent distinction and voluntary intoxication a defence to any crime provided the defendant does not have the mens rea for the offence. Germany (dangerous intoxication offence - where defendant can be sentenced up to a max of 5 years).
The LC would codify the law (put it into Statute) – this would make it more accessible, easier to amend, provide the opportunity to write the law appropriate language and clarify any existing uncertainty (e.g. the issue of basic/specific intent). The Government rejected the LC Report 2009.
(LC Report 2009)