Intoxication is never a defence

Criminal Law Review

Volumn , Issue 1, 2009, Pages 3-14

  Simester, A P ^a,b  

^a NATIONAL UNIVERSITY OF SINGAPORE   (Singapore)

^b UNIVERSITY OF CAMBRIDGE   (United Kingdom)

Author keywords

Basic intent; Criminal liability; Specific intent; Voluntary intoxication

Indexed keywords

EID: 58149229138     PISSN: 0011135X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (61)

1. I will focus here on this, the core of intoxication doctrine, while acknowledging that the doctrine also governs other contexts, including mistakes about supervening defences like self-defence; intoxication by therapeutic substances; and intoxication resulting in involuntary conduct (i.e. affecting D's responsibility for the actus reus).
2. Attorney-General (Northern Ireland) v Gallagher [1963] A.C. 349 HL at 380 (emphasis added).
3. Bratty v Attorney-General (Northern Ireland) [1963] A.C. 386 HL at 410.
4. Majewski [1977] 1 A.C. 443 HL at 448-449.
5. Majewski [1977] 1 A.C. 443 HL at 475.
6. Penal Code 1985 (Singapore) s.85(1): "Except as provided in this section and in section 86, intoxication shall not constitute a defence to any criminal charge". Subsection (2) follows: "Intoxication shall be a defence to any criminal charge if . . .". Similar provisions appear in the Penal Code of Malaysia. Notwithstanding the explicit language of those Codes, the analysis here extends also to their provisions.
7. Lord Salmon sees this clearly in Majewski [1977] 1 A.C. 443 HL at 481: "This does not mean that drunkenness, of itself, is ever a defence. It is merely some evidence which may throw a doubt upon whether the accused had formed the special intent which was an essential element of the crime with which he was charged."
8. That is, assuming the actus reus is proved (or at least, can be proved but for intoxication-induced involuntariness).
9. Kingston [1995] 2 A.C. 355 HL
10. Sheehan and Moore [1975] 1 WLR 739 CA (Crim Div) at 744.
11. See further Section II below.
12. Namely, although the criteria are notoriously uncertain: the intoxication was "voluntary"; the offence is one of "basic intent" (below, Section IV); and the substance ingested was "dangerous" or non-therapeutic. The parallel rule for intoxication by therapeutic substances has slightly different criteria.
13. cf. Criminal Code Act 1995 (Aus), s.8.2(1).
14. Richardson and Irwin [1999] 1 Cr. App. R. 392 CA (Crim Div) at 395 (emphasis added).
15. Lipman [1970] 1 Q.B. 152 CA (Crim Div).
16. Or, at least, that D satisfied the mens rea requirements of manslaughter. (Either way, the "natural" inference here would be that D intended to strangle V.) Had D caused serious injury, a charge under s.20 of the Offences Against the Person Act 1861 would require us to infer recklessness.
17. Compare too s.8.2 of the Criminal Code Act 1995 (Aus), which states in subs.(1) that "[e]vidence of self-induced intoxication cannot be considered in determining whether a fault element of basic intent existed", yet allows in subs. (3) that "[t]his section does not prevent evidence of self-induced intoxication being taken into consideration in determining whether conduct was accidental".
18. Like Hughes, where D got out of bed during the night and went to the kitchen "to peel potatoes"; whence she took a knife and returned to the bedroom to stab her husband: The Times, May 3, 1978, p.5.
19. cf. Indian Penal Code 1860 s.86; Model Penal Code, § 2.08(2).
20. A suggestion along these lines can be read into one passage from Lord Elwyn-Jones's judgment in Majewski [1977] A.C. 443 HL at 474-475, on the basis that to become voluntarily intoxicated is ipso facto reckless. For discussion, see A.P. Simester and G.R. Sullivan, Criminal Law: Theory and Doctrine, 3rd edn (2007), pp.633-634.
21. Richardson and Irwin [1999] 1 Cr. App. R. 392 CA (Crim Div) at 396-397.
22. Aitken, Bennet and Barson (1992) 95 Cr. App. R. 304 CMAC at 308; a direction confirmed by the Courts-Martial Appeal Court.
23. See, in particular, the discussion of Lord Elwyn-Jones's judgment in Majewski by Simester and Sullivan, Criminal Law (2007); also the insightful analysis by Dickson J. in Leary v R [1978] 1 S.C.R. 29 at46.
24. See Simester and Sullivan, Criminal Law (2007), § 6.5.
25. Contrary to s.3 of the Road Traffic Act 1988 (Careless, and inconsiderate, driving).
26. Road Traffic Act 1988 s.2B (Causing death by careless, or inconsiderate, driving); inserted by the Road Safety Act 2006 s.20.
27. Usually, the gateway is itself an offence (cf. J. Gardner, "Rationality and the Rule of Law in Offences Against the Person" [1994] C.L.J. 502, 508-509), but it need not be: A.P. Simester, "Is Strict Liability Always Wrong?" in Appraising Strict Liability (2005), p.21 at pp.46-48. In the present context, even though being drunk in public is quite often criminalised, including by many US states, privacy considerations should normally prevent drunkenness per se from being prohibited.
28. For exploration and defence of this large claim, see Simester, "Is Strict Liability Always Wrong?" (2005), pp.44-49. This is, incidentally, the worry about unlawful-act manslaughter (at p.46): there need be nothing about the unlawful act that suggests a foreseeable risk of death.
29. See, e.g., S. Cowan and A.C. Hunt, Mason's Forensic Medicine for Lawyers, 5th edn (2008), Ch.24.
30. e.g., in Hale 1 PC 32: "This vice doth deprive men of the use of reason and puts many men into a perfect but temporary phrenzy."
31. Majewski [1977] A.C. 443 HL at 474-475;
32. quoting also the argument made by D.A. Stroud, "Constructive Murder and Drunkenness" (1920) 36 L.Q.R. 268, 273: "By allowing himself to get drunk, and thereby putting himself in such a condition as to be no longer amenable to the law's commands, a man shows such regardlessness as amounts to mens rea for the purpose of all ordinary crimes." (Emphasis added in both quotations.)
33. American Law Institute, Model Penal Code Commentaries, Comment to § 2.08, p.359.
34. Compare the scepticism in C.N. Mitchell, "The Intoxicated Offender - Refuting the Legal and Medical Myths" (1988) 11 International Journal of Law and Psychology 77.
35. An instructive contrast is the example of drunk driving causing death, a distinct offence in many jurisdictions. Here one may point, ex ante, to demonstrable effects of alcohol upon the quality of one's driving and, in turn, to the risks of causing a fatal accident.
36. See J. Hodge, "Alcohol and Violence" in P. Taylor (ed.), Violence in Society (1993), p.127.
37. The leading cases are O'Connor (1980) 146 C.L.R. 64 HC (Aus) and Kamipeli [1975] 2 N.Z.L.R. 610 CA (NZ).
38. See further G. Orchard, "Surviving without Majewski Down Under" [1993] Crim. L.R. 426;
39. A.P. Simester and W.J. Brookbanks, Principles of Criminal Law, 3rd edn (2007), § 11.2;
40. also, however, S. Gough, "Surviving without Majewski?" [2002] Crim. LR. 719.
41. Majewski [1977] A.C. 443 HL at 471;
42. cf. Morgan [1976] A.C. 182 HL at 216 (Lord Simon).
43. See generally J. Horder, "Crimes of Ulterior Intent" in A.P. Simester and A.T.H. Smith (eds), Harm and Culpability (1996), p.153. The ulterior element need not always be one of "intent". An ulterior requirement of recklessness may sometimes suffice, provided it refers beyond the actus reus component.
44. See, e.g., Heard [2007] EWCA Crim 125; [2008] Q.B. 43 at [31] (discussing intentional or reckless criminal damage being reckless whether life was endangered).
45. Majewski [1977] A.C. 443 HL at 479-480. Cf. also Heard [2007] EWCA Crim 125; [2008] Q.B. 43 at [31].
46. See, e.g., A.P. Simester, "The Mental Element in Complicity" (2006) 122 L.Q.R. 578, 582-583 (text and fn. 17).
47. Criminal Law: The General Part (1961), p.22.
48. It might be different were the actus reus to require an act of deprivation. Appropriation, however, embraces far more preliminary, objectively ambiguous conduct. I return to this point in the text below.
49. Another example is the former offence of indecent assault, perpetrated in circumstances where the conduct itself is ambiguous. In Court [1989] A.C. 28 HL, D spanked a young girl on the seat of her shorts. The spanking was indecent because it was motivated by D's desire for sexual gratification. The same should in principle apply now under s.78(b) of the Sexual Offences Act 2003.
50. cf. J. Horder, "The Classification of Crimes and the Special Part of the Criminal Law" in R.A. Duff and S.P. Green (eds), Defining Crimes: Essays on the Special Part of the Criminal Law (2005), pp.21, 36. Admittedly, there may be a civil-law wrong of trespass to Vs chattel, should the appropriation be non-consensual. But that is not the same wrong as the (criminal) wrong of theft.
51. I am grateful for this formulation of the problem to A.T.H. Smith.
52. Commentary on Majewski, [1975] Crim. L.R. 570, 574.
53. Majewski [1977] A.C. 443 HL at 480.
54. Within s. 18 of the Offences Against the Person Act 1861, the reference here is to causing grievous bodily harm with intent. The alternative limb, wounding with intent, involves an ulterior intent.
55. Some writers suggest that murder too is a distinct wrong in which the defendant's intent plays a constitutive part: e.g. S.C. Shute, J. Gardner and J. Horder (eds), Action and Value in Criminal Law (1993), p. 14. Thus Horder, "The Classification of Crimes" (2005), pp.39-40, classifies murder as a specific intent offence by likening it to theft, arguing that there are reasons not to try to kill which are distinct from the reasons we have not to kill. But that seems no more true of homicide than, say, of criminal damage. Murder, like criminal damage, is at root a harm-based offence; this is reflected by its definition in many English-language jurisdictions, where it can be committed without an intention to kill (or even to inflict grievous injury). On the analysis here, Horder's attempt to explain the entire specific-basic intent division by a single distinction is over-reductive.
56. Majewski [1977] A.C. 443 HL at 479.
57. Cf. Lord Russell at 498, "the element of guilt or moral turpitude is supplied by the act of self-intoxication reckless of possible consequences". (Emphasis added in both quotations.)
58. Depending on the facts, there may be a case for saying D was negligent. But that is an ad hoc matter, and in any event falls short of the usual requirement for advertent recklessness.
59. Law Com. Consultation Paper No. 127, Intoxication and Criminal Liability (1993); but not in its subsequent Report, No.229 (1995).
60. See also the Butler Committee's earlier Report of the Committee on Mentally Abnormal Offenders. 1975. Cmnd.6244. I cannot here pursue the objections (such as over-complicating the task of jurors) that influenced the Law Commission to reconsider its position.
61. In Germany, s.323A(1) StGB (roughly translated) provides that: "Whoever intentionally or negligently becomes intoxicated by alcohol or other substances, and performs an unlawful act while in this condition for which [because of the intoxication] he may not be punished, shall be punished with imprisonment for not more than five years or a fine." Subsection (2) further caps the punishment at no more than the maximum provided in respect of the act done while intoxicated.