Transcript The Final Solution

Criminal Defences
Defences - Intoxication
Criminal Defences
Intoxication
© The Law Bank
1
Criminal Defences
Defences - Intoxication
Starter
•
Look at the sources in front of you. Pass them around so that you get a
chance to see each of them and then take an educated guess as to whether
in each of the cases the defendant could possibly have a defence of
Intoxication.
•
Be prepared to justify your answer.
•
Extension Q – What are the key common elements with these scenarios if
any?
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Criminal Defences
Defences - Intoxication
Scenario 1
A man who has been having a
number of restless nights takes
his wife’s valium believing it will
help him sleep.
It has an odd effect on him and
he sets fire to his house.
✔
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Criminal Defences
Defences - Intoxication
Scenario 2
At the school prom and
unbeknown to Sam someone
has slipped vodka into the non
alcoholic punch. Sam is allergic
to vodka and seriously assaults
his arch love rival Timmy as a
result.
✔
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Criminal Defences
Defences - Intoxication
Scenario 3
Having assaulted Timmy, Sam’s
girlfriend ditches him. Sam is
distraught and starts drinking.
He drinks so much that he
losses all powers of thought and
in his total drunken stupor he
kills his girlfriend. He has no
idea what he did.
✔
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Criminal Defences
Defences - Intoxication
Scenario 3
Before Sam is arrested he
meets Timmy. Timmy who is
drunk sees Sam and instantly
flies into a rage and hits him on
the head with a chair. Sam
sustains injuries consistent with
GBH (and bizarrely turns into an
old man.)
✗
© The Law Bank
Criminal Defences
Defences - Intoxication
Objectives
• Identify the law on the general defence of
intoxication
• Apply the law on intoxication to a number of
problem scenarios
• Evaluate the law on intoxication with regard to
its effectiveness and fairness
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Criminal Defences
Defences - Intoxication
General Defences - Intoxication
•
Includes alcohol, drugs and solvents
•
If intoxicated D may not have the necessary mens rea
•
Public policy means it would be wrong to allow intoxication as a defence
•
Dependant on whether you choose to become intoxicated or not (voluntary
vs involuntary)
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Specific and basic intent crimes treated differently
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Criminal Defences
Defences - Intoxication
Activity - Revision
• In your groups place the key offences we look at into
two columns one for specific and one for basic.
• Explain why each crime is in each of the columns.
• When you have done check off against this list and
add the crimes you do not have:
–
Murder, voluntary manslaughter, involuntary manslaughter, theft, criminal damage, aggravated criminal
damage, assault, battery, section 47 ABH, section 20 GBH, section 18 GBH
© The Law Bank
Criminal Defences
Defences - Intoxication
Intoxication - The General Rule
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Basic rule – partial defence for specific intent crimes only
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R v Majewski (1977)
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As basic intent crimes have an element of recklessness it has been decided
that drunkenness is a reckless act and therefore confers liability
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Involuntary intoxication will always provide a defence for both basic and
specific intent crimes providing D did not form mens rea after intoxication.
Voluntary intoxication MAY be an defence for specific intent crimes but
NEVER for basic intent crimes
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Criminal Defences
Defences - Intoxication
DPP v Majewski [1976] 2 All ER 142, HL
D took a mixture of drugs and alcohol and subsequently assaulted 3 people in a fight in pub and then
a PC who attend the scene followed by 2 more officers at the police station. His defence was that he
had been drinking and taken drugs and had no intention to commit the acts which he did. His
conviction was upheld: D's intoxication was the result of his own voluntary reckless act, said the
House of Lords, and the trial judge had rightly directed the jury that they were to ignore it in
considering whether he had formed the necessary mens rea in a crime of basic intent.
Principle - Lord Elwyn-Jones LC said that if a man of his own volition takes a substance which
causes him to cast off the restraints of reason and conscience, no wrong is done to him by holding him
answerable criminally for any injury he may do while in that condition. His conduct in reducing himself
to that condition supplies the evidence of mens rea sufficient for crimes of basic intent. Lord Simon
said one of the prime purposes of the criminal law is the protection from certain proscribed conduct,
including unprovoked violence, of persons who are pursuing their lawful lives. To allow intoxication as
a defence would leave the citizen legally unprotected from unprovoked violence where this was the
consequence of drink or drugs having obliterated the capacity of the perpetrator to know what he was
doing. This case made the distinction between crimes of basic intent and crimes of specific
intent.
Guilty
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Criminal Defences
Defences - Intoxication
Activity
• Why is the principle in DPP v. Majewski [1976] 2 All
ER 142, HL, vulnerable to criticism?
• As the defendant's intoxication replaces the need for
mens rea, there may never be a point in time when
the actus reus and mens rea coincide.
• The defendant's intoxication is viewed as a reckless
condition and this is used to replace the
recklessness requirement of the mens rea.
©12
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Criminal Defences
Defences - Intoxication
Voluntary Intoxication
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Where a person takes drink or drugs of own free will
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A defence only for specific intent crimes AND if proved D had no mens rea
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However, if drunk and still has intent then will be guilty
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AG for N Ireland v Gallagher (1963) – Dutch courage rule:
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Criminal Defences
Defences - Intoxication
Attorney-General for NI v Gallagher [1961] 3 All ER 299, HL
A man D had decided to kill his wife and drank a bottle of whisky to give him the "Dutch courage" to do
so.
Principle - The House of Lords (reversing the Court of Appeal) said that as long as D had the
mens rea of murder at the time of drinking the whisky, and did not positively discard it, he could
properly be convicted. Lord Denning: defence not available to either 'specific' or 'basic' intent, if drink
or drugs taken to fortify courage. If mens rea is formed before intoxication, as in Dutch Courage,
there will be no defence of intoxication. Here the intention to kill his wife was formed before he
got drunk.
Guilty
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Criminal Defences
Defences - Intoxication
Constructing liability
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May be able to reduce sentence to create liability
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Some offences have a variation of specific and basic intent crimes
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Where this is the case if the specific intent crime cannot be used it is
possible to charge with the basic intent crime
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Examples include Criminal Damage, GBH and Murder/Manslaughter
•
R v Lipman (1976)
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Criminal Defences
Defences - Intoxication
R v Lipman [1969] 3 All ER 410, CA
D and his girlfriend V each took a quantity of LSD (a hallucinatory drug). During his "trip", D imagined
he was being attacked by snakes at the centre of the earth and had to defend himself; in doing so, he
actually killed V by cramming eight inches of sheet down her throat.
Principle - He was acquitted of murder because the jury were not sure that he had the necessary
intention, being intoxicated, but convicted of manslaughter.
Guilty
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Criminal Defences
Defences - Intoxication
Involuntary Intoxication
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Where a person does not know they are taking/have taken drink or drugs
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May be several different circumstances in which this is possible
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For involuntary intoxication to be used a defence D must show that he was
unable to form the mens rea
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R v Kingston (1994)
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If D can form mens rea when intoxicated will still be liable
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Criminal Defences
Defences - Intoxication
R v Kingston [1994] 3 All ER 353, HL
A man D who was sexually attracted to boys (but who had never previously acted on that attraction)
went to the flat of another man X. Unknown to D, X intended to lure D into a compromising situation in
order to blackmail him, and drugged D's coffee. X then took D into a bedroom where there was a 15year-old boy, also drugged. D performed various sexual acts with the boy and was subsequently
charged with indecent assault. D claimed that he had no recollection of the assault, as his drink had
also "been laced" with drugs by X, who photographed the indecent act.
Principle - Involuntary intoxication is not a defence to a defendant who is proved to have the
necessary criminal intent when he committed the offence even if under the influence of drugs
administered secretly to the accused by a third party. There was no defence of exculpatory excuse
known to the criminal law since the absence of moral fault on the part of the defendant was not
sufficient in itself to negative the necessary mental element of the offence. The trial judge had correctly
directed the jury that if they were sure that despite the effect of any drugs the defendant still intended
to commit an indecent assault the case against him was proved. Lord Mustill said he was not sure if a
line could definitively be drawn between offences of "specific" and "basic" intent.
Guilty
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Criminal Defences
Defences - Intoxication
Involuntary Intoxication scenarios
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Where D does not realise the strength of the alcohol or drug they have
taken
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R v Allen (1988)
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Where D takes a non dangerous drug not prescribed for him
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R v Hardie (1985)
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Criminal Defences
Defences - Intoxication
R v Allen [1988] Crim LR 698, CA
D was charged with buggery and indecent assault (these being crimes of basic intent), but claimed he
was so drunk he had not known what he was doing. He had drunk a certain amount of wine without
realising how strong it was, and his intoxication should therefore be regarded as involuntary.
Principle - Upholding his conviction, the Court of Appeal said that where a defendant knows he is
taking alcohol, the drinking does not become involuntary just because he does not know its exact
nature or strength. Intoxication remains voluntary even where the defendant claims he did not
know the strength of the drink or drugs.
Guilty
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Criminal Defences
Defences - Intoxication
R v Hardie (1985) 1 WLR, 64
D started a fire in a friend's flat after taking valium (not prescribed for him).
Principle – Caldwell distinguished because he did not have the mens rea, and considered that
while intoxication cannot usually be pleaded as a defence to offences of recklessness, the rule will not
generally apply to drugs … 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 selfadministration of dangerous drugs. The voluntary consumption of dangerous drugs might be
conclusive proof of recklessness, this is not the case with non-dangerous drugs, and a jury
should have been directed to consider whether the defendant had been reckless in consuming
the Valium.
Not guilty
© The Law Bank
Criminal Defences
Defences - Intoxication
Activity
•
Try this one out for size:
•
Early one morning, Alan is standing on a stepladder, washing the windows
of his house with a powerful detergent solution. Bob ad Chris come walking
noisily up the street, having spent all night out, drinking alcohol. Bob shouts
something and suddenly veers across the street in Alan’s direction, followed
by Chris, who is trying to take hold of his arm. Alan is convinced that Bob is
coming to knock him off the ladder and quickly gets down and throws the
bucket of detergent solution over Bob. Some of the solution also goes over
Chris, causing him to suffer an extreme allergic reaction which requires
hospital treatment for damage to the skin on his face. In fact, though very
drunk, Bob merely wanted to have a friendly talk to Alan.
•
Explain whether Bob could plea intoxication in relation to the above incident.
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Criminal Defences
Defences - Intoxication
Intoxication & other defences
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Intoxication and Insanity - cannot be used unless it leads to alcoholism
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Intoxication and automatism - cannot be used if recklessly self induced
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Intoxication and self-defence - if drunken mistake is about self defence or
prevention of crime D will never have a defence
•
R v Hatton (2005) and R v O'Grady (1987)
•
s.76 Criminal Justice and Immigration Act 2008
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Criminal Defences
Defences - Intoxication
R v O'Grady [1987] 3 All ER 420, CA
D and his friend M spent all day drinking, and consumed about eight flagons of cider between them.
During the night they had a fight, and D killed M supposedly in self-defence. The evidence suggested
that in his drunken state D had overestimated the threat to himself, and so had used excessive force in
his own defence. He was charged with murder and convicted of manslaughter.
Principle – The Court of Appeal said there were two public interests to be balanced: on the one
hand D should be able to do what he honestly believed necessary to protect himself, but on the other
the innocent victim should be protected from injury or death by another's drunken mistake. Reason
recoiled from the conclusion that D should be able to walk free after a drunken killing, and logic would
extend such a defence (if allowed) even to Lipman (above). This would clearly be unjust, so it must
remain the case that a defendant cannot rely on self-defence where it results from a mistake caused
by his own intoxication.
Guilty manslaughter
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Criminal Defences
Defences - Intoxication
R v Hatton [2005] EWCA Crim 2951, CA
D beat the deceased to death with a sledgehammer after drinking over 20 pints of beer. His
recollection of events was unclear but he believed that he was under attack. The issue was the
reasonableness of D’s reaction as he had believed the facts to be, even if that belief was mistaken and
the mistake was caused by his intoxication.
Principle – In self-defence, a mistake induced by drunkenness cannot be relied on. The decision
in O’Grady was not obiter simply because it was a case of manslaughter, and that, accordingly,
anything said about the law of murder had to have been unnecessary to the decision. The issue
considered by the court in O’Grady had been whether a defendant who raised the issue of selfdefence was entitled to be judged on the basis of what he mistakenly believed to be the situation when
that mistaken belief was brought about by self-induced intoxication by alcohol or drugs. To that issue,
the court had ruled that he was not.
Guilty
© The Law Bank
Criminal Defences
Defences - Intoxication
Activity
• Without even knowing the proposed reforms see
if you in your teams can come up with what you
think the areas of difficulty are with the law on
Intoxication.
• Having done that make some suggestions for
reform before we examine what the current state
of play is.
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Criminal Defences
Defences - Intoxication
Intoxication Evaluation and Reform
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Distinction between basic and specific intent crimes
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Inconsistency in its effect
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Make sure all specific intent crimes have a basic intent alternative
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Intoxication offence
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Full defence
© The Law Bank
Criminal Defences
Defences - Intoxication
Plenary
• Individually or in pairs come up with something
to help them remember what has been studied.
This could be a mnemonic, visual aids, a story, a
song etc.
• Share your aide memoires and produce a pool
of the most helpful ones.
© The Law Bank
Criminal Defences
Defences - Intoxication
Objectives
• Identify the law on the general defence of
intoxication
• Apply the law on intoxication to a number of
problem scenarios
• Evaluate the law on intoxication with regard to
its effectiveness and fairness
© The Law Bank