Irish Law Reform Commission Papers and Reports

THE LAW REFORM COMMISSION

AN COIMISIÚN UM ATHCHÓIRIÚ AN DLÍ

 

CONSULTATION PAPER

ON

INTOXICATION AS A DEFENCE TO A CRIMINAL OFFENCE

 

IRELAND

The Law Reform Commission

Ardilaun Centre, 111 St Stephen's Green, Dublin 2

 

 

© Copyright The Law Reform Commission 1995

First Published February 1995

 

 

THE LAW REFORM COMMISSION

The Law Reform Commission was established by section 3 of the Law Reform Commission Act, 1975 on 20th October, 1975. It is an independent body consisting of a President and four other members appointed by the Government.

The Commissioners at present are:

The Hon. Anthony J. Hederman, former Judge of the Supreme Court, President;

John F. Buckley, Esq., B.A., LL.B., Solicitor;

William R. Duncan, Esq., M.A., F.T.C.D., Barrister-at-Law, Professor of Law and Jurisprudence, University of Dublin, Trinity College;

Ms. Maureen Gaffney, B.A., M.A. (Univ. of Chicago), Senior Lecturer in Psychology, University of Dublin, Trinity College;

Simon P. O'Leary, Esq., B.A., Barrister-at-Law.

The Commission's programme of law reform, prepared in consultation with the Attorney General, was approved by the Government and copies were laid before both Houses of the Oireachtas on 4th January, 1977. The Commission has formulated and submitted to the Taoiseach or the Attorney General forty eight Reports containing proposals for the reform of the law. It has also published eleven Working Papers, eight Consultation Papers and Annual Reports. Details will be found on pp.123–127.

Alpha Connelly, B.A., LL.M., D.C.L., is Research Counsellor to the Commission.

Ms. Nuala Egan, B.C.L., LL.M. (Lond.), Barrister-at-Law, Ms. Sarah Farrell, LL.B., LL.M. (Lond.), and Mr. Niall Fitzgibbon, B.C.L., LL.M. (Cantab.) are Research Assistants.

Further information from:

The Secretary,

The Law Reform Commission,

Ardilaun Centre,

111 St. Stephen's Green,

Dublin 2.

Telephone: 671 5699.

Fax No: 671 5316.

 

 

CONTENTS PAGES   CHAPTER 1: INTRODUCTION 1–20   General 1   Intoxication Offences 2   Innocent Intoxication 3   Self-Induced Intoxication 4   Intoxication And Addiction 9   Intoxication And Recklessness 9   Intoxication And Dutch Courage 11   Intoxication And Insanity 13   Intoxication And Diminished Responsibility 16   Intoxication And Automatism 18   Intoxication And Mistake 19   Conclusions 20   CHAPTER 2: THE DEVELOPMENT OF THE DEFENCE IN THE COMMON LAW 21–32   Historical Development 21   The Twentieth Century 26   Conclusion 31   CHAPTER 3: THE LAW IN OTHER JURISDICTIONS 33–69   Introduction 33   England And Wales 33   The specific intent/basic intent dichotomy 33   Majewski: The public policy considerations 34   Criticisms of Majewski 35   Recklessness 37   The Public Order Act, 1986 40   The special position of murder 41   Intoxication and mistake 41   Scotland 44   Acute intoxication in homicide cases 44   Acute intoxication in crimes other than homicide 46   Australia 48   General 48   The Common Law States 48   THIS IS AN ORIGINAL PAGE-BREAK: PAGE NUMBER=v   CONTENTS PAGES   The Code States 52   General 52   Queensland and Western Australia 52   Tasmania 53   The Northern Territory 54   New Zealand 54   General 54   R v Kamipeli 55   Canada 56   Leary v R 56   Specific and general intent 59   Degree of intoxication 60   South Africa 61   S v Chretien 61   South African Law Commission 62   The 1988 Act 63   The United States of America 63   The Model Penal Code 63   Self-induced intoxication 69   Innocent intoxication 65   Completely disregard the effect of voluntary intoxication 66   Intoxication as a full defence 66   Intoxication as a disease 66   European Civil Law Jurisdictions 66   Germany 67   Switzerland 68   Austria 68   The Netherlands 69   Italy 69   CHAPTER 4: PROPOSALS FOR REFORM IN OTHER JURISDICTIONS 70–113   Introduction 70   England And Wales 70   The Butler Committee Report 70   THIS IS AN ORIGINAL PAGE-BREAK: PAGE NUMBER=vi   CONTENTS PAGES   Fourteenth Report of the Criminal Law Revision Committee 72   Law Commission's Criminal Code for England and Wales 77   Consultation Paper on Legislating the Criminal Code: Offences against the Person and General Principles 81   The Relevant Clauses 83   Recklessness in cases of voluntary intoxication 84   Defences based on intoxicated belief 84   “Intoxicant” and “voluntary intoxication” 85   Consultation Paper on Intoxication and Criminal Liability 86   Option 1: Do nothing 86   Option 2: Codify the Majewski approach 86   Option 3: Disregard the effect of voluntary intoxication in any offence 87   Option 4: Disregard the effect of voluntary intoxication in any offence, subject to a statutory defence 88   Option 5: Abolish Majewski without replacement 89   Option 6: Abolition combined with a new offence 89   Australia 91   The Common Law States 91   Law Reform Commission of Victoria, 1984 Discussion Paper 91   Law Reform Commission of Victoria, 1986 Report 92   Law Reform Commission of Victoria, 1988 Discussion Paper 95   Option 1 95   Option 2 96   Option 3 96   Option 4 96   Option 5 97   Law Reform Commission of Victoria, 1990 Report 98   The Code States 99   Queensland Criminal Code Review Committee 99   Murray Report On The Criminal Code In Western Australia 100   Law Reform Commissioner of Tasmania 102   The Northern Territory 102   The Conclusions Of The Commonwealth Review Committee 102   THIS IS AN ORIGINAL PAGE-BREAK: PAGE NUMBER=vii   CONTENTS PAGES   New Zealand 106   The New Zealand Criminal Law Reform Committee 106   Revised New Zealand Code 108   Canada 109   Law Reform Commission of Canada, 1982 109   Law Reform Commission of Canada, 1988 Report 110   CHAPTER 5: PROVISIONAL PROPOSALS FOR REFORM 114–122   Majewski 114   Our Choice Of Approaches 114   Realities 115   A Special Offence 115   No Ideal Solution 119   Complete Exclusion 120   Sentencing 121   Involuntary Intoxication 121   Insanity 121   Conclusion 122   Submissions 122   LIST OF COMMISSION PUBLICATIONS 123–127

 

 

CHAPTER 1: INTRODUCTION

General

1.1

Intoxication as a defence to a criminal charge gradually developed as the law became more concerned with the mental element in crime. Today, while most common law jurisdictions recognise some form, albeit often limited, of intoxication defence, legislators and jurists throughout the common law world, nevertheless, have difficulty defining the appropriateness and the parameters of such a defence.

1.2

In its formative period and into the twentieth century, the defence concentrated on drunkenness rather than on the effect of other drugs on the mental process. In 1969 in England¹ it was held that the same principles apply to intoxication by drugs other than alcohol. In that case the defendant killed his companion when he was under the influence of LSD, hallucinating that he was fighting snakes in the centre of the earth. He was convicted of constructive manslaughter because he had committed an unlawful act, and sentenced to six years' imprisonment.²

1.3

Two later decisions, Bailey³ and Hardie⁴, suggest that drugs must be divided into two categories. Where it is common knowledge that a drug is liable to cause a person to become aggressive or do dangerous or unpredictable things, that drug is to be classed with alcohol. But where there is no such common

1 Lipman [1970] 1 Q.B. 152, [1969] 2 All E.R. 410.   2 Glanville Williams comments, Textbook of Criminal Law, 2nd ed., Stevens, 1983, p.469, that: “The decision caused discomfort to commentators, but the House of Lords regarded it as authoritative in Majewski. It is clear from the latter case that Lipman's 'unlawful act' was in attacking his female companion. This attack was an assault, his state of confused consciousness being the result of voluntary intoxication. One may have serious doubts, however, about the severity of the sentence.”   3 [1983] 2 All ER 503, [1983] 1 WLR 760.   4 [1984] 3 All ER 848, [1985] 1 WLR 64.

 

 

knowledge, as in the case of a sedative drug, different rules apply.⁵ Smith and Hogan point out that there are obvious difficulties about classifying drugs in this way and, if the distinction were to survive at all, it would not be surprising if it led to further case-law.⁶ Furthermore, there is no evidence that the distinction was ever made in this jurisdiction.

1.4

Today, the defence is generally understood to encompass both alcohol and other drugs and that is the approach adopted in this Consultation Paper. While the consumption of alcohol is to a great extent socially acceptable and its use or possession not legally prohibited (or at any rate, prohibited only in conjunction with certain activities as with being in control of a vehicle while intoxicated), this is not the case with other drugs. Nevertheless, it is appropriate to consider intoxication by alcohol and other drugs as being equal for the purposes of the intoxication defence, as the relevant consideration is whether the accused had the requisite mental element for the offence charged or acted voluntarily. Where the use or possession of the substance concerned is proscribed by law, then that is a separate issue and should be dealt with in the usual way under the misuse of drugs legislation.

1.5

It is important to note at the outset of this Consultation Paper that there is no modern reported decision on the defence in this jurisdiction and one can only speculate as to how an Irish court would decide should an appropriate case arise for its consideration.

Intoxication Offences

1.6

The relationship between the defence of intoxication and offences where intoxication is an element of an offence is a further factor which must be considered. In general, these will be strict liability offences and far from providing a defence, the intoxication of the accused will be an element of the offence. It is arguable that the defence of intoxication, no matter how formulated, should not be relevant to these offences.

1.7

These offences are most commonly related to intoxicated driving or being intoxicated in a public place. For example, section 49(1) of the Road Traffic Act, 1961 provides that a person shall not drive a mechanically propelled vehicle in a public place while under the influence of an intoxicant to such an extent as to be incapable of having proper control of the vehicle. Similarly, section 12 of the Licensing (Ir.) Act, 1836, section 25 of the Licensing Act (Ireland), 1874, section 15 of the Dublin Police Act, 1842 and section 59 of the Road Traffic Act, 1968 all prohibit being intoxicated in a public place.

1.8

The imposition of strict liability in these cases, particularly in relation to driving while intoxicated and similar road traffic offences, is justified on the basis that the possible results of doing the prohibited act are well known and

5 Smith and Hogan, Criminal Law, 7th ed., Butterworths, 1992, p.218.   6 Ibid, p.219.

 

 

potentially very serious.

1.9

In the case of being intoxicated in a public place, the penalties are usually slight, involving either a fine or detention for a short time, unless associated with disorderly behaviour, for example, where, under section 12 of the 1872 Act, an offender may be liable to a month's imprisonment.

1.10

However, strict liability is not absolute liability in all cases. It does not necessarily mean that the mental element is ruled out completely. It may be necessary to prove that the accused was aware of all the circumstances of the offence except for that in respect of which liability is imposed.⁷ Again there is no reason why other defences should not be available. Indeed, there is English authority⁸ that automatism would be a defence to the offence of dangerous driving which was understood to impose strict liability.⁹ It was held that if the defendant had been in a state of automatism, then he had a defence.¹⁰ However, if the automatistic state results solely from the voluntary consumption of alcohol or other drugs, then the defence would not arise.

1.11

Charleton comments that controversy has arisen as to the extent to which evidence of consumption of alcohol is admissible on a charge of dangerous driving.¹¹ He cites The People (A.G.) v Regan where Griffin J. held that:

1.12

The amount of drink that would adversely affect a driver was characterised as significant and Charleton submits that evidence that the accused drove while affected by drugs would be subject to the same principle.

Innocent Intoxication

1.13

It has long been established¹³ that where one is intoxicated through no fault of one's own, either as a result of drink having been spiked or of taking medication under medical prescription, one cannot be condemned for one's actions and accordingly will have a defence to any criminal charge.¹⁴

7 Smith and Hogan, op cit, p. 114.   8 Hill v Baxter [1958] 1 Q.B. 277.   9 Smith and Hogan, op cit, p.114.   10 The relationship between intoxication and automatism is considered infra at para. 1.65–70.   11 Peter Charleton, Offences Against the Person, Irish Criminal Law Series, The Roundhatl Press, 1992, para. 3.45.   12 [1975] I.R. 367 at 373.   13 Recently, the Court of Appeal in England affirmed that involuntary intoxication could be an answer to a criminal charge saying that if there is evidence capable of giving rise to the defence of involuntary intoxication, the jury should be left to consider whether the accused's intent to commit the criminal act was induced by involuntary intoxication and thereby negated. See Kingston, [1993] 4 All ER 373.   14 Clarkson and Keating: Criminal Law: Text and Materials, 2nd ed., Sweet and Maxwell, 1990, p.394.

 

 

Evidence of innocent intoxication¹⁵ is regarded as relevant even for crimes of basic intent,¹⁶ where a distinction is made between crimes of specific intent and basic intent.¹⁷

1.14

Clearly, the drunk must be sufficiently intoxicated as to be lacking full mental faculties. Should one be in possession of one's faculties to the extent that, although the intoxication was innocent or involuntary, one still knew what one was doing or was still capable of controlling one's actions, then no defence would arise.¹⁸

1.15

It is probable that the intoxication of an addict would not be regarded as being involuntary in this jurisdiction.¹⁹

Self-Induced Intoxication

1.16

Where intoxication is self-induced or voluntary, in general, it is not an excuse for criminal misconduct. Nevertheless, where it does arise, self-induced intoxication as a defence presents certain unique problems for the criminal law. At one extreme, one finds the stance that no person should be convicted of an offence requiring mens rea if that person did not have the requisite intent for that offence. At the other extreme, it is argued that where a person lacks the requisite state of mind because of self-induced intoxication, that person should gain no benefit. Somewhere in between these two extremes lies the argument that while a person may be acquitted of the principal offence, he or she should nevertheless be convicted on the basis that the act of becoming intoxicated, in itself, supplied the fault element of the offence.

1.17

In our Reports on Rape²⁰ and Malicious Damage²¹ we drew attention to the fact that there is no modern Irish decision, in the context of criminal law, of which we were aware, on the question of the admissibility or materiality of evidence of intoxication to negate the mental element required for the offence charged.

1.18

In particular, in our Report on Malicious Damage we undertook an examination of how the law on this topic might be altered by legislation, and while we thought that there was much to be said for the approach adopted by the majority of the Criminal Law Revision Committee²² based on the Model Penal

15 The use of the term “innocent intoxication” is preferable to the more commonly used “involuntary intoxication” as the person may “voluntarily” but unknowingly take the intoxicant.   16 Glanville Williams, op cit., p.483.   17 See infra, para. 1.20.   18 Perkins and Boyce, Criminal Law, 3rd ed., Foundation Press, University Textbook Series, 1982.   19 See infra, para. 1.7.   20 Report on Rape and Allied Offences, (LRC 24–1988).   21 Report on Malicious Damage, (LRC 26–1988), p.23.   22 Cmnd. 6244 (1975). See infra, Chapter 4.

 

 

Code,²³ we were led to the conclusion that we should defer any final recommendation on the matter of intoxication to this Paper.

1.19

In its modern manifestation, the intoxication defence has its roots in a series of nineteenth century English cases culminating in Director of Public Prosecutions v Beard²⁴ in 1920. Beard established that, in the words of Lord Birkenhead L.C.:

1.20

Beard has subsequently been interpreted (in particular, by the House of Lords in Director of Public Prosecutions v Majewski²⁶) to have distinguished two forms of intent, specific intent and basic intent: self-induced intoxication supplies a defence to the former but not the latter. In Majewski, the House of Lords held that Lord Birkenhead's formulation did not apply to crimes of basic intent. Lord Simon of Glaisdale held:

1.21

However, in so far as a defence is provided, evidence of intoxication is not a passport to an acquittal.²⁸ Whether the evidence of intoxication leads to an acquittal, or not, depends on the circumstances and on the view taken of them by the jury.²⁹ It is not the simple fact of intoxication that absolves the defendant. The criminal law is concerned with the situation where such a large quantity of alcohol and/or other drugs is consumed that one becomes unaware of what one is doing or unable to control one's actions, and while in that state, one commits a crime requiring mens rea. Therefore, the law is concerned only with the more extreme state of intoxication which might have prevented the accused from having the requisite mens rea for the particular offence charged.

1.22

There is no rule about the degree of intoxication that is required.³⁰ Lynch distinguishes between persons who are “extremely affected” by intoxicants and those who are “mildly affected” and classifies the distinction as being between

23 (1) That evidence of voluntary intoxication should be capable of negativing the mental element in murder and the intention required for the commission of any other offence; and,   (2) In offences in which recklessness constitutes an element of the offence, if the defendant owing to voluntary intoxication had no appreciation of a risk which he would have appreciated had he been sober, such lack of appreciation is immaterial.   24 [1920] A.C. 479.   25 At pp.501–2.   26 [1976] 2 All ER 142.   27 At p. 155.   28 Glanville Williams, op cit, p.467.   29 Ibid.   30 Ibid.

 

 

“completely intoxicated” and “partially intoxicated”.³¹ However, Smith and Hogan comment that there are many degrees of intoxication and therefore conclude that: “the suggested distinction seems unworkable.”³² Glanville Williams contends that the question for the jury is whether the evidence of intoxication negatives the capacity to form the required mens rea³³ Perkins and Boyce comment that: “the intoxication must be shown to have been of such a character as to create a state of mental confusion, excluding the possibility of specific intent.”³⁴ They go on to state:

1.23

Throughout much of the history of the intoxication defence, there have been statements suggesting that it may only be available to a person who was intoxicated to such a degree that he or she was incapable of voluntary action or of forming the requisite mens rea.³⁶ However, with a declining recognition of a presumption of intention, the courts have increasingly moved towards referring to the intoxication defence arising from lack of mens rea rather than from lack of capacity to form mens rea.³⁷ The simple question is did the accused have the requisite intent?

1.24

In our Consultation Paper on Sentencing,³⁸ while considering aggravating and mitigating factors, we briefly looked at offending while under the influence of alcohol and drugs. We noted that the Council of Europe's Sentencing Committee found that among the member states of the Council of Europe there is a difference in approach in respect of offences committed under the influence of alcohol. It reported that:

31 A.C.E. Lynch, “The Scope of Intoxication”, [1982] Crim. L.R. 139.   32 Smith and Hogan, op cit., p.221.   33 Glanville Williams, op cit, p.467.   34 Op cit., p.1013.   35 Ibid.   36 Eric Corvin, “A Theory of the Intoxication Defence”, [1981] 59 Canadian Bar Review 750 at 774.   37 Ibid., p.776.   38 LRC 44–1992, Chapter 4.

 

 

1.25

We felt that it was important to assess the degree of intoxication. Where one is partially intoxicated and has some knowledge of one's actions, but nevertheless offends, one may be viewed as being in the same situation as an impulsive offender who realises what he or she is doing, but loses his or her inhibitions. We concluded that the fault did not lie so much in the commission of the offence as in allowing oneself to become so intoxicated as to be unable to control one's actions. One possible solution would be to sentence the offender as a reckless offender for knowingly risking harm by becoming intoxicated, whether the harm was obvious to the offender or not. However, we were of the opinion that the dilemma as to whether one really was so intoxicated as to be unable to control one's actions or was partially intoxicated and therefore closer to an impulsive offender remained. We cited Ashworth's conclusion that:

1.26

Recently, in a decision handed down in the High Court in April 1992,⁴¹ Carney J. noted in sentencing the defendant that the psychiatric report stated that he (Corbally) had consumed 15 or 16 pints of beer and had taken the drugs hash and ecstasy on the night of the rape. The judge held that this was an aggravating rather than mitigating factor in the case. However, there is no general policy on intoxication as either a mitigating or an aggravating factor.

1.27

The Commission is of the opinion that a distinction must be made between situations where intoxication should be considered as a matter relevant to sentence only; and, situations where intoxication arises for consideration as being relevant to the actual guilt of the accused.

1.28

In the former context, the accused's intoxication may be considered as either a mitigating or an aggravating factor, depending on all the circumstances of the case, at the trial judge's discretion.

1.29

In this Consultation Paper, we are concerned with intoxication in the

39 Summary Report of the Fourth Meeting, PC-R-SN (91) 1.   40 Ashworth, Sentencing and Penal Policy, Weidenfeld & Nicolson, London, 1983, p. 173.   41 Reported on in The Irish Times, 28 April 1992.

 

 

latter context, i.e. the circumstances in which intoxication is relevant to liability, as it is in this context that the question of intoxication as a defence arises. In addition, the Commission recognises that the relationship between intoxication by alcohol and intoxication by other drugs poses an interesting dilemma; as does the relationship between offences where intoxication is an element of the offence and the intoxication defence.

1.30

Indeed it should be emphasised that to speak of intoxication as a defence is somewhat to confuse the matter. As we have indicated, what the law is concerned with is the lack of the requisite intent on the part of the offender.⁴² In the words of Lord Birkenhead L.C., the defence:

1.31

Therefore, as it is clear that the requisite intent is in issue, why should lack of intent produced by intoxication not be a complete defence in all cases?⁴⁴ The obvious reason is that a defence of intoxication poses a dilemma for the criminal law: on the one hand, there is the cardinal maxim of actus non facit reum, nisi mens sit rea;⁴⁵ and on the other hand, there is the substantial policy consideration that the law should not condone criminal behaviour which results from self-induced intoxication. In particular, alcohol and/or drugs are significantly associated with crimes of violence, though this does not necessarily mean that they are a causal factor.⁴⁶

1.32

The social consumption of alcohol is almost universal in our society and its physiological and psychological effects known, in a general way, to even the moderate drinker.⁴⁷ As the consumption of other drugs becomes more prevalent, understanding of their effects is also growing. Glanville Williams comments regarding alcohol that:

1.33

Nevertheless, in behavioral terms, exactly what happens to a person when

42 Stanley M. Beck and Graham E. Parker, “The Intoxicated Offender – A Problem of Responsibility”, [1966] 44 Canadian Bar Review 563 at 580.   43 D.P.P. v Beard [1920] A.C. 479 at 499.   44 Beck and Parker, op cit, p.580.   45 An act does not of itself constitute guilt unless the mind is guilty.   46 F.H. McClintock and others, Crimes of Violence, London, 1963, p.254. Cited in Glanville Williams, op cit, p.464.   47 Beck and Parker, op cit, p.607.   48 Glanville Williams, op cit, p.464.

 

 

he or she becomes intoxicated is not as yet precisely known.⁴⁹ It might be possible to conclude that, because experimental psychology has not been able to identify the effects of intoxication on behaviour, the criminal law should not be expected to alter its criteria of responsibility. However, medical science does know in general terms what effects intoxicants have on the individual and might support a change in the degree of responsibility ascribed to an intoxicated offender.⁵⁰ Beck and Parker comment:

Intoxication And Addiction

1.34

Can addiction to intoxicants lead to circumstances where a person can be said not to be responsible? We think not, unless, perhaps, addiction has led to the development of a non-transient form of insanity. Even the most addicted person can recover with or without treatment. Therefore, if a person is, theoretically, in a position to recover and resist the first drink or 'hit', that person's intoxication can never be truly described as involuntary.

Intoxication And Recklessness

1.35

In R v Caldwell⁵² a majority of the House of Lords held that evidence of intoxication would not be relevant if the offence charged was one for which recklessness would be sufficient to constitute the mental element. This

49 Beck and Parker, op cit, p.570.   50 Ibid, p.571.   51 Ibid, p.571.   52 [1981] 1 All ER 961.

 

 

development has not found favour in some common law jurisdictions.

1.36

The emphasis in Irish law is on a subjective standard of reasonableness and the objective nature of the decision in Caldwell is unlikely to find favour in Irish law.

1.37

In People v Dwyer⁵³ the Supreme Court held that where the defence to a charge of murder is self defence against a violent and felonious attack, the trial judge should inform the jury that if they come to the conclusion that the accused, acting in self defence, employed more force than was reasonably necessary, but no more than he or she honestly believed to be necessary, they should return a verdict of guilty of manslaughter.

1.38

Walsh J. held:

1.39

Walsh J. concluded that:

1.40

Butler J. in his judgment, noted:

53 [1972] I.R. 416.   54 At 423.   55 Section 4 of the Criminal Justice Act, 1964–   “   (1) Where a person kills another unlawfully the killing shall not be murder unless the accused person intended to kill, or cause serious injury to, some person, whether the person actually killed or not.   (2) The accused person shall be presumed to have intended the natural and probable consequences of his conduct; but this presumption may be rebutted.”   56 [1972] I.R. 416 at 424.

 

 

1.41

Butler J. concluded that:

1.42

Charleton remarks that the finding in the O'Connor judgment that drunknessess could not replace the mental element by making it the equivalent of recklessness was significant, in the light of the discussion of recklessness in The People (D.P.P.) v. Murray, [1977] I.R. 360.⁵⁹

1.43

The Commission has previously recommended that recklessness should be defined subjectively. In our Report on Receiving Stolen Property,⁶⁰ we proposed that the formulation from the tentative draft of the Model Penal Code, approved by Henchy J. in his judgment in Murray should be adopted:

Suffice it to say at this stage that if intoxication, voluntarily brought about gives rise to recklessness and in consequence to uninhibited, (overtly) criminal acts, however remote from the original indulgence in intoxicants, society is surely not precluded from making exceptions to strict doctrines relating to intent and the guilty mind in order to address this mischief.

Intoxication And Dutch Courage

1.44

One would imagine that the situation should be more straightforward where one deliberately reduces oneself to a state of intoxication in order to give oneself 'dutch courage' to commit a crime. The intoxication will not be a defence; even to crimes that can only be committed with a specific intention.

1.45

As Lord Denning stated in A.G. for Northern Ireland v Gallagher:

57 At p.429.   58 At p.432.   59 Op cit, para. 4.44.   60 Report on Receiving Stolen Property, (LRC 23–1987).   61 [1977] I.R. 360 at 403, quoted in the Report (LRC 26–1988) at p.20.

 

 

1.46

However, as Glanville Williams remarks “the majority did not express concurrence in Lord Denning's view, because they decided the case on a different point”.⁶³ He explains that counsel for the defendant had argued that he was irresponsibly insane, and the majority held that the question of insanity was to be judged by reference to the time of the act and not some earlier time when he took alcohol, because at that earlier time he might not have been insane, yet he might have been insane at the time of the act. Glanville Williams remarks that “Lord Denning's opinion, on the other hand, supposed that insanity was out of the case; on that assumption, he says, it was surely right.”⁶⁴

1.47

The difficulty with Lord Denning's view, according to Smith and Hogan,⁶⁵ is that an intention to do an act some time in the future is not mens rea. They point out that the mens rea must generally coincide with the conduct which causes the actus reus. They illustrate this with an example:

1.48

They go on to say that:

62 [1961] 3 All E.R. 299 at 314.   63 Glanville Williams, op cit, p.468.   64 Ibid.   65 Smith and Hogan, op cit, p.229.   66 Ibid.   67 Ibid.

 

 

Intoxication And Insanity

1.49

In strict logic, it might be argued that the intoxication defence should, like insanity, preclude criminal responsibility. With acute intoxication, one may have lost one's power of self control; one's ability to make judgements may be impaired; and, one may be quite incapable of foreseeing the consequences of one's acts.⁶⁸

1.50

However, as Charleton writes:

1.51

He indicates that where the accused is suffering from an insane delusion, but the delusion is not so complete as to render him or her insane, apparently he or she is to be judged according to the McNaughten Rules of 1843.⁷⁰ He goes on to say, citing Windle⁷¹ and Doyle v Wicklow County Council⁷² as authority, that:

1.52

An irresistible impulse, unless it is caused by the accused's own fault, is

68 Beck and Parker, op cit, p.572.   69 Op cit, para. 4.45.   70 It was held by the Law Lords that:   “the jurors ought to be told in all cases that every man is presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their satisfaction; and that to establish a defence on the ground of insanity, it must be clearly proved that, at the time of committing the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or, if he did know it, that he did not know that he was doing what was wrong”. 10 CL & F at p.210.   71 [1952] 2 All E.R. 1.   72 [1974] I.R. 55.   73 Wrong in this context means wrong according to the standards adopted by reasonable persons and not legally wrong.   74 Op cit, para. 4.45.

 

 

also accepted as part of the insanity plea.⁷⁵

1.53

Where intoxication causes a disease of the mind, it may be sufficient to bring the defendant within the insanity rules. In such circumstances, they will be applied in exactly the same way as where insanity arises from any other cause. A person in delirium tremens, for example, is held to be irresponsible and insane. However, there are serious difficulties in defining a “disease of the mind” or “disease affecting the mind” and the distinction between temporary insanity induced by drink or other drugs and simple intoxication is far from clear-cut.⁷⁶ Furthermore, the term delirium tremens has been occasionally used to indicate a mere fit of drunken frenzy although technically it designates a mental disease⁷⁷ and it is only in this latter sense that it can relate to the insanity defence.

1.54

Glanville Williams comments that:

1.55

There is one early English decision⁷⁹ accepting a defence of insanity based on alcoholism resulting in delirium tremens. However, even in this case the attitude appears to have been that an acquittal on the grounds of insanity would have been too lenient.⁸⁰ Clarkson and Keating comment that the defence is rarely successful in England.⁸¹ They cite a 1974 case, Burns,⁸² where a psychiatrist testified that Burns had a disease of the mind because his brain was damaged by alcohol with the result that he was suffering from “amnesia in the sense that the thing does not register at the time because the brain function is

75 Ibid.   76 Smith and Hogan, op cit, p.227.   77 Perkins and Boyce, op cit, p. 1015.   78 Glanville Williams, op cit, p.466.   79 Davis (1881) 14 Cox C.C. 563.   80 Don Stuart, Canadian Criminal Law: A Treatise, 2nd ed., The Carswell Company Limited, Toronto, p.366.   81 Op cit, p.395.   82 (1974) 58 Cr. App. R. 364.

 

 

impaired” which meant that Burns did not know what he was doing, or that it was wrong when he committed the alleged crime. It was accepted that this defence could result in the insanity verdict, but the jury rejected the psychiatric evidence and concluded that Burns knew what he was doing.⁸³

1.56

In Salzman v United States,⁸⁴ while the conviction of the appellant was confirmed (because the record was inadequate to sustain his assertion that the jury should have been allowed to consider, and acquit if so found, whether the act with which he was charged was the product of the disease from which he claimed to be suffering, namely, chronic alcoholism), Circuit Judge Skelly Wright, nevertheless, set forth his views because he considered that the problems were important. He observed that:

83 Clarkson and Keating, op cit, p.395.   84 405 F.2d 358 (1968) (United States Court of Appeals, District of Columbia Circuit).

 

 

1.57

On this side of the Atlantic, Glanville Williams writes that intoxication is not in itself insanity, but that intoxication may result in what is thought of as insanity or it may be symptomatic of insanity, or bring about latent insanity. In these circumstances the ordinary defence of insanity is open and if it succeeds there will be a special verdict and the defendant will go to hospital. However, he goes on to comment that:

1.58

In general, the common law has been reluctant to take the view that intoxication should be treated like insanity and has relied on overriding policy considerations to justify this position.⁸⁷ It is also argued that public opinion would not approve of laws which would completely excuse intoxicated offenders.⁸⁸

Intoxication And Diminished Responsibility

1.59

Mention should also be made of the defence of diminished responsibility which is available in some other jurisdictions. At the moment, such a defence is not recognised in this jurisdiction. While consideration of such a defence is more appropriate in the context of a review of the law on insanity, it is relevant to

85 Quotation from Clarkson and Keating, op cit, p.396.   86 Op cit., p.446.   87 Don Stuart, op cit, p.363.   88 Beck and Parker, op cit, p.607.

 

 

recognise that just as intoxication and insanity may overlap, intoxication and diminished responsibility may likewise overlap depending on how the defence of diminished responsibility is formulated. In general, the defence arises in the context of disease or abnormality of the mind⁸⁹ and invariably, in the context of reducing murder to manslaughter.⁹⁰

1.60

For example, section 2 of the English Homicide Act, 1957 provides that:

1.61

As intoxication is not recognised as a disease or abnormality of mind, it is unlikely to be included as a relevant consideration. Smith and Hogan remark that while it has been argued⁹¹ that intoxicants can produce a toxic effect on the brain which would be an injury within section 2, the court thought it was very doubtful whether the transient effect of intoxication could amount to an injury. They go on to suggest that:

1.62

The English Court of Appeal, in Tandy,⁹³ held that intoxication may found diminished responsibility if the defendant is suffering from alcoholism which renders the taking of the first drink involuntary.⁹⁴

1.63

If this is regarded as undesirable then the alternative is expressly to exclude intoxication under the definition of the defence. This is exactly the course adopted by the Law Commission in its Draft Criminal Code for England

89 For example, see section 2(2) of the English Homicide Act, 1957.   90 Ibid.   91 Di Duca (1959) 43 Cr. App. Rep. 167, Dowdall (1960) Times, 22 January.   92 Op cit., p.228.   93 [1989] 1 All E.R. 267.   94 Law Com. No. 177, op cit, para. 14.19.

 

 

and Wales.⁹⁵ Clause 56 proves that:

Intoxication And Automatism

1.64

Charleton comments that at common law, it has always been a defence that the accused's action was involuntary.⁹⁶ He points out that the defence is often difficult to distinguish from insanity. He adds that this is compounded by the uncertain definition of insanity in Irish law.

1.65

Automatism is generally understood to provide a defence to any criminal act where the accused acted involuntarily, i.e. where it is done by the muscles without the control of the mind, such as a spasm, a reflex action or a convulsion, or an act done by a person who is not conscious of what he or she is doing, such as an act done whilst suffering from concussion or whilst sleepwalking. If automatism if successfully pleaded, the accused is entitled to a complete acquittal.⁹⁷

1.66

Automatism may be insane or non-insane, the former results in the special verdict of “guilty but insane” and the latter entitles the accused to a full acquittal. The distinction is made between automatism which results from internal factors (insane automatism), and automatism which results from external factors (non-insane automatism). Examples of insane automatism are automatism caused by a cerebral tumour, arteriosclerosis, epilepsy, diabetes and sleepwalking, though there has been some doubt regarding the latter. Examples of non-insane automatism are, automatism caused by concussion, the administration of an anaesthetic or other drug, or hypnosis.⁹⁸

1.67

In general, in common law jurisdictions, there is said to be one exception to the rule that there is no liability for an involuntary act. In jurisdictions where Majewski is followed this exception relates to where the act was done in a state

95 The Law Commission, A Criminal Code for England and Wales, Law Com. No. 1977.   96 Op cit., para. 4.47. See 1 Hale P.C. 434.   97 Charleton, op cit, para. 4.47.   98 Smith and Hogan, op cit, p.39.

 

 

of self-induced intoxication and the offence was one of basic intent.⁹⁹ MaKay¹⁰⁰ argues that such an exception is part of the wider rule that automatism induced by the defendant's fault is no defence. However, Smith and Hogan respond that there is no case on this other than intoxication cases and that the exception is best confined to those cases.¹⁰¹

1.68

There has been some disagreement as to whether voluntariness should be treated as part of the mens rea, or part of the actus reus. On the one hand, it is a mental element; while on the other hand, it is an essential constituent of the act.¹⁰² Arguably, the classification is important, because, it is suggested that, if it is part of the mens rea, then no defence is provided in cases of strict liability. However, this argument fails to appreciate that even in cases of strict liability, the mental element is not totally discounted. As Smith and Hogan comment:

1.69

The Commission considers that for the purpose of this Consultation Paper, voluntariness should be considered as a question of mens rea.

Intoxication And Mistake

1.70

Charleton writes that the relevance of mistake of fact as a defence can only be determined by isolating and defining the elements of the offence. Thus he goes on to state that:

99 Ibid, p.37.   100 R. D. MaKay, “Intoxication as a Factor in Automatism”, [1982] Crim. L.R. 146.   101 Op cit, p.38.   102 Ibid.   103 Ibid.   104 Op cit., para. 4.38.

 

 

1.71

Thus a reasonable mistake of fact may operate as a defence to a particular offence. However, where the mistake is the result of self-induced intoxication, it would appear that the defendant should not be able to rely on his or her mistake.

Conclusions

1.72

As we shall see in subsequent Chapters, in an endeavour to reconcile the conflicting considerations which arise in the analysis of the intoxication defence, and in the absence of parliamentary intervention, many common law courts have adopted the specific intent/basic intent dichotomy.

1.73

During the twentieth century, much of the debate on the defence has centred on whether Beard, in particular in the light of Majewski, should be followed or not. Most of the common law world has accepted the basic/specific intent dichotomy.¹⁰⁵ Yet the Beard/Majewski approach has not gone uncriticised and some common law jurisdictions have refused to follow it.¹⁰⁶

1.74

Whether Irish courts would follow the Beard/Majewski model should an appropriate case arise for consideration is by no means guaranteed. It is entirely possible that the Irish courts might hold that there is no such defence as intoxication in Irish law.

1.75

The Commission regards the quest for clarity in this area as a useful starting point for a review of the law on intoxication as a defence. We consider that consideration of the defence in other jurisdictions and the proposals for reform which have been advanced elsewhere will provide useful insights into the nature of the defence, as well as highlighting possible problems and pitfalls.

1.76

With this in mind, the Commission proposes to consider the history of the defence at common law, the defence as it exists in other jurisdictions and the proposals for reform which have been put forward in those jurisdictions, so that we may learn from their experience.

105 Notably, England and Wales, the United States of America, Canada, the Australian code states.   106 Notably, the Australian common law states, New Zealand and until recently South Africa.

 

 

CHAPTER 2: THE DEVELOPMENT OF THE DEFENCE IN THE COMMON LAW

Historical Development

2.1

In its formative period the common law was little concerned with the mental processes of the offender.¹ Historically, an offender was subject to the punishment of outlawry in addition to the individual revenge of the blood feud, but these slowly gave way to a system of compensation whereby one was permitted to “buy” the peace one had broken.² By the twelfth century as the administration of the criminal law became centralised under the Crown, punishment became more common.³

2.2

Originally, intoxication was not of itself an offence under the common law, however, it was punishable in the ecclesiastical courts.⁴ The recognition of intoxication as a defence developed slowly over a number of centuries. The earliest mention of intoxication relating to criminal responsibility in English legal literature is to be found in the Penitential of Theodore, Archbishop of Canterbury from 668 to 690 A.D.⁵. However, it is in Reniger v. Feogossa,⁶ argued before the Exchequer Chamber in 1551, that one finds the first reported case containing an early statement of the law. It was held that:

1 Pollock and Maitland, History of English Law, Vol. 2, 2nd ed., 1899, pp.448–511.   2 Stanley M. Beck and Graham E. Parker, op cit.   3 Ibid, p.564.   4 Perkins and Boyce, op cit., p.995.   5 R.U. Singh, “History of the Defence of Drunkenness in English Criminal Law”, (1933) 49 Law Quarterly Review 528.   6 (1551) 1 Plowden 1, 75 E.R. 1 (ex.).

 

 

2.3

Some early cases and authorities treated intoxication as an aggravation of the offence.⁸ For instance, in Beverley's Case in 1603, it was said that:

2.4

Similarly, both Coke and Blackstone were of the opinion that intoxication at the time of the commission of the crime was a matter of aggravation.¹⁰ Chitty¹¹ and Russell¹² also accepted this view.¹³

2.5

As a statement of the law, however, this view has been criticised on the grounds that as far as the common law is concerned a crime committed by an intoxicated person is not aggravated thereby.¹⁴ Singh comments that:

2.6

Singh concludes that:

7 Ibid.   8 See further Singh, op cit.   9 4 Coke 125.   10 “A drunkard”, says Sir Edward Coke, “who is voluntarius daemon, hath no privilege thereby; but what hurt or ill soever he doth, his drunkenness doth aggravate it.” 4 Bl. Comm. star26 Blackstone has a passage to the same effect: “As to artificial, voluntarily contracted madness, by drunkenness or intoxication which, depriving men of their reason, puts them in a temporary phrenzy: our law looks upon this as an aggravation of the offence, rather than an excuse for any criminal misbehaviour.” 4 Bl. Comm. star25. He also cites the Greek enactment “that he who committed a crime when drunk should receive double punishment”. 4 Bl. Comm star26.   11 Criminal Law, vol. iii, p.725 (1816 ed.).   12 Crimes and Misdemeanours, vol. i, p.11 (1819 ed.).   13 See Singh, op cit., p.531.   14 Perkins and Boyce, op cit., p.1000.   15 Singh, op cit., p.531.   16 Ibid, p.532.

 

 

2.7

Nevertheless, it is true to say that prior to the nineteenth century intoxication was not a defence to a criminal charge. The view that intoxication could not excuse appears first to have been qualified by Hale.¹⁷ In accordance with the earlier authorities, he wrote that a drunken person:

2.8

But he continued:

2.9

Singh comments that these allays are important in the history of the defence of intoxication as no one before that had specifically urged any modification of the general rule that intoxication did not excuse crime.²⁰ However, he observes that it is difficult to say to what extent these exceptions represent the law of Hale's time or how far they were innovations introduced by him.

2.10

By a series of cases in the nineteenth century the rigidity of the old rule that voluntary intoxication was never a defence to crime was gradually relaxed, though this mitigation could not for a long time be affiliated to a single principle.²¹ This series of cases was comprehensively reviewed by Lord Birkenhead L.C. in D.P.P. v. Beard in 1920.²²

2.11

The case of R. v. Grindley,²³ tried in 1819, seems to have been the first reported decision in which intoxication was put forward as a defence.²⁴ In that case, Holroyd J. held that although voluntary intoxication could not excuse the

17 Hale, 1 Pleas of the Crown.   18 Ibid, p.32.   19 Ibid.   20 Op cit, p.534.   21 (1920) A.C. 479 at 495 (per Lord Birkenhead L.C.).   22 (1920) A.C. 479.   23 Russell on Crimes and Misdemeanours, 2nd ed., p.8.   24 (1920) A.C. 479 at 495 (per Lord Birkenhead L.C.).

 

 

commission of any crime, yet where, as upon a charge of murder, the material question was, whether an act was premeditated or done only with sudden heat or impulse, the fact that the person was intoxicated was a circumstance that could properly be taken into consideration.

2.12

Singh comments that the language used was capable of wide application,²⁵ and in R v. Carroll²⁶ the case was overruled and Park J. declared that “there would be no safety for human life if it were considered law”.²⁷

2.13

In Burrow's Case²⁸ and in Rennie's Case²⁹ Holroyd J. assumed that intoxication could not be taken into account as a defence to a criminal charge unless the derangement which it caused became fixed and continuous because the intoxication itself was habitual.³⁰

2.14

During the 1830s, three cases,³¹ involving apprehension in the mind of the accused of attack or the effect of a sudden provocation, recognised that the intoxication of the accused could be taken into consideration by the jury.

2.15

The first observations on the question of intoxication as affecting intent were made in R v. Meakin.³² Anderson B. directed the jury that:

2.16

The view was that intoxication might affect the jury's view of the intent but that the use of the deadly weapon in that case showed the malicious intent so clearly that the intoxication of the accused could not alter it.³³

2.17

Two years later, in R v. Cruse,³⁴ Patterson J. directed the jury that although intoxication was no excuse for crime, yet it was often of very great importance in cases where it was a question of intention and that a person might be so intoxicated as to be utterly unable to form any intention at all, and yet may be guilty of very serious violence. Though agreeing with the substance of Patterson J.'s direction, the correctness of the words used was doubted by Coleridge J. in R v Monkhouse.³⁵ Coleridge J. further observed:

25 Op cit., p.527.   26 (1835) 7 C. & P. 145.   27 Ibid.   28 (1823) 1 Lewin 75.   29 (1823) 1 Lewin 76.   30 (1929) A.C. 479 at 496.   31 Marshall's Case (1830) 1 Lewin 76; Pearson's Case (1835) 2 Lewin 144; and R v Thomas (1837) 7 C.& P. 817.   32 (1836) 7 C. & P. 297. See Singh, op cit., p.539.   33 (1920) A.C. 479 at 497.   34 (1838) 8 C. & P. 546.   35 (1849) 4 Cox C.C. 55.

 

 

2.18

Here again the appropriate question seemed to have been whether the accused was so intoxicated as to be entirely incapable of forming the intent charged, that is, the intent to murder.³⁷

2.19

Singh comments that this would be a correct statement of the law if it did not contain the words “unless the intoxication was such as to prevent his restraining himself from committing the act in question.”³⁸

2.20

In R v. Stopford,³⁹ on an indictment for wounding with intent to do grievous bodily harm, Brett J. said:

2.21

The question was whether the accused had formed the intent to murder, and this was answered, in the opinion of the trial judge, if the jury thought the intoxicated condition rendered the accused incapable of forming the intention.⁴¹

2.22

In R v. Doherty⁴² Stephen J. directed the jury that:

36 Quoted by Singh, op cit, p.539.   37 (1920) A.C. 479 per Lord Birkenhead L.C. at 498.   38 Op cit., p.539. Lord Birkenhead L.C. had passed a similar remark in Beard.   39 11 Cox C.C. 643.   40 Ibid.   41 (1920) A.C. 479 per Lord Birkenhead L.C. at 498.   42 (1887) 16 Cox C.C. 306.

 

 

2.23

Lord Birkenhead L.C. commented that this established (except in the case of insanity):

2.24

In the 1880s the law on intoxication resulting in mental disease developed a great deal. In the early nineteenth century, in Burrow's Case⁴⁵ and in Rennie's Case⁴⁶, and as late as 1878 in R v. M'Gowan⁴⁷, the rule had been laid down that only habitual intoxication causing permanent insanity could be a defence to a crime. But in 1881, in R v. Davis,⁴⁸ Stephen J. ruled that temporary insanity induced by intoxication excused the accused. He directed the jury that:

2.25

In R v. Baines,⁴⁹ decided four years later, Day J. expressly overruled R v. M'Gowan.

The Twentieth Century

2.26

The first important British case on intoxication in the twentieth century is R v. Meade.⁵⁰ In that case, the Court of Criminal Appeal laid down the following rule as to the nature of the intoxication which would be sufficient to satisfy the jury that the accused had not the relevant intent:

43 Quoted by Singh, op cit, p.540.   44 Beard (1920) A.C. 479 at 499.   45 (1823) 1 Lewin 75.   46 (1823) 1 Lewin 76.   47 See Singh, op cit., p. 541, citing Taylor and Stephenson, Manual of Medical Jurisprudence, 12th ed., p.797.   48 (1881) 14 Cox C.C. 563.   49 The Times, 25 January, 1886.   50 [1909] 1 KB 895.

 

 

2.27

Singh comments that:

2.28

Nevertheless, Meade's Case was the leading British authority until 1920, when the House of Lords handed down its now famous decision in Director of Public Prosecutions v. Beard.⁵²

2.29

In Beard, on an indictment for murder, the defendant pleaded intoxication as a defence. He was convicted of murder at first instance. The Court of Criminal Appeal substituted a verdict of manslaughter on the grounds that the trial judge in his summing up was wrong in applying the insanity test to the case of intoxication holding that he ought to have directed the jury, in accordance with the rule laid down in Meade's Case, that a person charged with a crime of violence may show, in order to rebut the presumption that he intended the natural consequences of his acts, that he was so intoxicated that he was incapable of knowing that what he was doing was dangerous. On appeal to the House of Lords, it was held that the broad proposition laid down in Meade's Case was not and could not be supported by authority. However, the Court did not specifically overrule Meade's Case in its particular application.

2.30

Lord Birkenhead L.C. made a historical survey of the way the common law from the sixteenth century dealt with the effect of self-induced intoxication on criminal responsibility. As indicated, he showed how, from 1819 on, judges began to mitigate the severity of the attitude of the common law in such cases as murder and serious violent crime where the penalty of death or transportation applied or where there was likely to be sympathy for the accused, as in attempted suicide. Lord Birkenhead L.C. concluded that (except in cases where insanity was pleaded) the decisions he had cited:

51 Op cit., p.543.   52 [1920] A.C. 479.

 

 

2.31

However, in a later passage, he when on to say:

2.32

While the former paragraph is accepted law, this latter passage has been criticised. Singh comments that:

2.33

Singh concludes by saying that:

53 At p.499.   54 At p.504.   55 Op cit., p.544. He cites the following cases as authority: R v. Meakin, 7 C.& P. 297; R v. Cruise, 8 C. & P. 546; R v. Monkhouse, 4 Cox C. C. 55; and R v. Doherty, 16 Cox C.C. 306. He comments that:   “All these decisions repeatedly emphasize the limited scope of the defence of drunkenness, and, notwithstanding a careless use of words in some of them, it can very well be said that they confine the defence to cases where specific intent is an essential element of the crime charged.”   56 Ibid.

 

 

2.34

In Director of Public Prosecutions v. Majewski,⁵⁷ the House of Lords confirmed the rule, obscurely stated in Beard, that evidence of self-induced intoxication negativing mens rea is a defence to a charge of a crime requiring a specific intent but not a charge of any other crime.⁵⁸ In Majewski the appellant was convicted on three counts of assault occasioning actual bodily harm and on three counts of assault on a police constable in the execution of his duty. He claimed that having consumed large quantities of alcohol and drugs shortly before the instances in question, he did not know what he was doing. He was a drug-addict and admitted that he had previously “gone paranoid,” but said that this was the first time he had “completely blanked out.” Judge Petre directed the jury to “ignore the subject of drink and drugs as being in any way a defence” to the assaults. The appeal to the House of Lords was unanimously dismissed.

2.35

Lord Elwyn-Jones L.C., in his judgment, commenting⁵⁹ on Lord Birkenhead L.C.'s latter passage quoted above, referred to Shroud who commented on the passage shortly after it was delivered. Shroud wrote:

2.36

Lord Elwyn-Jones L.C. went on to hold that:

2.37

He concluded by saying that, in the instant case, the jury could be properly instructed that they can ignore the subject of drink or drugs as being in any way a defence in the charge.⁶²

2.38

Lord Salmon commenting on the same passage from Lord Birkenhead's judgment stated:

57 [1976] 2 All ER 142.   58 Smith & Hogan, op cit., p.220.   59 [1976] 2 All ER 142 at 149.   60 Ibid.   61 [1976] 2 All ER 142 at 151.   62 Ibid.

 

 

2.39

Glanville Williams comments that while Lord Birkenhead L.C. had not explained what he meant by “specific”, it can be said that his judgment indicates that he had nothing very much in mind.⁶⁴ That he attached no particular significance to it can be demonstrated by the fact that immediately after the sentence in question he repeated it in essence but modified it by omitting the word “specific” and substituted the phrase “the intent necessary to constitute the crime”. Williams adds:

63 [1976] 2 All ER 142 at 158.   64 Glanville Williams, op cit., p.471.

 

 

Conclusion

2.40

During the course of the twentieth century, the House of Lords' decision in Beard, in particular as it was interpreted in Director of Public Prosecutions v. Majewski,⁶⁶ has been adopted in many common law jurisdictions. This development has not gone uncriticised, both in Britain and in other common law jurisdictions.⁶⁷ Indeed, some jurisdictions have rejected the Beard/Majewski approach.

2.41

In England, as we have indicated, in Director of Public Prosecutions v. Majewski, the House of Lords confirmed its decision in Beard, and the specific intent/basic intent dichotomy that is its legacy remains the law there. In addition, in R v Caldwell⁶⁸ a majority of the House of Lords held that evidence of intoxication would not be relevant if the offence charged was one for which recklessness would be sufficient to constitute the mental element.⁶⁹

2.42

As we shall see in Chapters 3 and 4, the law has evolved in the following jurisdictions along somewhat disparate lines.

2.43

In the United States of America, section 2.08 of the Model Penal Code recognises that evidence of intoxication can be a defence if it negatives an element of the offence, but not in the case of recklessness.⁷⁰

2.44

In Scotland, despite initial acceptance of Beard,⁷¹ in 1977, the High Court in Brennan v H.M. Advocate,⁷² held that Beard did not represent the law in Scotland. The Court rejected the specific intent/basic intent dichotomy, holding, in essence, that all intent was to be regarded as basic.⁷³

2.45

Australia's eight jurisdictions are evenly divided on the issue. The common law states,⁷⁴ following the High Court decision in R v. O'Connor,⁷⁵ have rejected Majewski. Briefly, the Court held that where a person does a prohibited act while so intoxicated and there is a reasonable doubt as to whether

65 Ibid.   66 [1976] 2 All ER 142.   67 See further infra, Chapter 3.   68 [1981] 1 All ER 961.   69 See further infra, Chapter 4 under England and Wales.   70 See further infra, Chapter 4 under the United States of America.   71 H.M. Advocate v. Campbell 1921 J.C. 1 and Kennedy v. H.M. Advocate 1944 J.C. 171.   72 1977 SLT 151.   73 See further infra, Chapter 4 under Scotland.   74 New South Wales, Victoria, South Australia and the Australian Capital Territory.   75 (1981) 146 C.L.R. 64.

 

 

that person acted voluntarily and intentionally, then that person should be acquitted. The Code States⁷⁶ and the Northern Territory remain unaffected by the decision in O'Connor and the law is substantially as stated in Majewski.⁷⁷

2.46

The law in New Zealand is similar to the Australian common law states. In R v. Kamipeli⁷⁸ the Court of Criminal Appeal rejected the specific intent theory arguing that it would amount to a situation whereby the state would be exempt from proving mens rea.⁷⁹

2.47

The Canadian Supreme Court followed Majewski in Leary v. R⁸⁰. This decision was confirmed in Bernard.⁸¹ However, in Daviault,⁸² a case of sexual assault, the Supreme Court held that the rule in Leary violated ss.7 and 11(d) of the Charter of Rights, in that a mens rea requirement could never be excluded, even from crimes of basic intent – a decision which has given rise to great controversy in Canada.

2.48

In South Africa, in S v. Chretien⁸³ the Court unanimously held that severe intoxication which rendered an accused capable of only involuntary actions, was a complete defence, as the accused had committed no actus reus. However, in 1988 the South African Parliament passed an Act⁸⁴ providing that though one may not be liable for the principal act, one may be found guilty of an offence and liable on conviction to the penalty, except the death penalty, which might have been imposed in respect of the commission of the principal act.⁸⁵

76 Queensland, Western Territory and Tasmania.   77 See further infra, Chapter 4 under Australia.   78 [1975] 2 N.Z.L.R. 610.   79 See further infra, Chapter 4 under New Zealand.   80 (1977) 74 D.L.R. (3d) 103, S.C.C..   81 [1988] 2 S.C.R. 833.   82 24 W.C.B.2d 586.   83 [1981] 1 S.A. 1097 (A).   84 Act No. 1 of 1988.   85 See further infra, Chapter 4 under South Africa.

 

 

CHAPTER 3: THE LAW IN OTHER JURISDICTIONS

Introduction

3.1

In this Chapter we propose to consider the law in other jurisdictions. We consider that such an exercise is useful from two perspectives: first, it supplies us with various models for a defence of intoxication which have been adopted elsewhere; and secondly, it serves to highlight the difficulties which have arisen in their application.

3.2

As Majewski¹ has been so significant to the development of the defence, we propose to consider Majewski and the specific intent/basic intent dichotomy in some detail. However, while Majewski is of considerable importance, not all jurisdictions have been persuaded by it and in considering jurisdictions other than England and Wales, we propose to concentrate on the alternative models that have been adopted.

England And Wales

3.3

As we have already indicated, the law on the intoxication defence in England and Wales is as stated in the decision in Beard,² but interpreted in Majewski so as to enshrine the specific intent/basic intent dichotomy in the law of England and Wales. The law on the intoxication defence is also subject to the additional qualification introduced in Caldwell³ regarding recklessness.

The specific intent/basic intent dichotomy

3.4

The nature of “specific intent” is obviously a matter of some importance,

1 [1976] 2 All ER 142.   2 [1920] A.C. 479.   3 [1981] 1 All ER 961.

 

 

however, as Smith and Hogan point out:

3.5

Glanville Williams comments that:

Majewski: The public policy considerations

3.6

It is clear that the House of Lords' decision that evidence of intoxication should not be admissible to negate basic intent was based on a number of public policy considerations. One of the recurring policy considerations is that one should not be entitled to rely by way of defence on an automatistic state brought about by one's voluntary acts. This principle is justified by Lord Elwyn-Jones in the following passage in Majewski:

4 Smith and Hogan, op cit, p.221.

 

 

3.7

Protection of the community is another common consideration. Lord Simon of Glaisdale stated that:

3.8

Closely allied to this is the consideration of general notions of justice. Lord Salmon while acknowledging that the distinction between specific and basic intent could not be justified in strict logic, argued that this was the view that had been adopted by the common law which founded on common sense and experience rather than strict logic. He held that:

Criticisms of Majewski

3.9

The series of decisions culminating in Majewski has evoked much criticism from commentators.⁸ It is criticised as unethical and illogical and, in particular, that:

3.10

In particular, it is said to be illogical because, once it is conceded that the elimination of the intent required for the particular crime by self-induced intoxication can constitute a defence in law, it should make no difference whether the intent in question is “basic” or “specific”. It is said to be unethical because people should not be convicted of crimes involving a certain state of mind when they lack that guilty mind, even though that condition is the result of morally culpable behaviour, e.g. self-induced intoxication.

3.11

The law lords attempted to deal with these criticisms in Majewski. Lord Elwyn-Jones said:

3.12

Lord Simon of Glaisdale similarly remarked that:

3.13

Lord Salmon commented:

3.14

Commenting on this, Dashwood remarks that the 'stricter part of the rule,' denying that self-induced intoxication can excuse crime, is based on

9 See Dashwood op cit, pp. 533–537.   10 [1976] 2 All ER 142 at 150.   11 At p.155.   12 At 152.

 

 

sufficient policy considerations of public security and distributive justice. However, he goes on to remark that the choice of offences which qualify for the benevolent part of the rule appears arbitrary.¹³

3.15

Lord Edmund-Davies, while acknowledging that their approach savoured unattractively of a “judge-made fiction”, was prepared to defend it:

3.16

Dashwood concludes that the charge of illogicality can be answered in that:

3.17

Disquiet at the Majewski approach to intoxication has not been confined to academic critics. In Australia, Monahan J. said, referring to charges of assault occasioning actual bodily harm:

Recklessness

3.18

Smith and Hogan explain that English law recognises two types of recklessness, which they call “Cunningham recklessness” and “Caldwell/Lawrence recklessness” after the leading cases. Put simply, the distinction is that Cunningham recklessness requires proof that the accused was aware of the existence of an unreasonable risk whereas Caldwell/Lawrence recklessness is satisfied if either (i) one was aware of the existence of the unreasonable risk, or

13 Dashwood, op cit, at p.597.   14 [1976] 2 All ER 142 at 170.   15 Dashwood, op cit, at p.596.   16 R v Keogh [1964] V.R. 400 at 401.

 

 

(ii) in the case of an obvious risk, one failed to give any thought to the possibility of its existence.¹⁷

3.19

In R v Caldwell,¹⁸ a majority of the House of Lords held that evidence of intoxication would not be relevant if the offence charged was one for which recklessness would be sufficient to constitute the mental element.¹⁹ It was held that one is “reckless” within the meaning of the Criminal Damage Act, 1971 if:

3.20

While Lord Diplock (with whom Lord Keith and Lord Roskill concurred) was clearly unhappy at the attaching of “subjective” and “objective” labels to such tests, it has generally been accepted that this formulation introduced an objective criterion into the determination as to whether recklessness existed. Thus if the risk was obvious the accused will be found guilty under Caldwell recklessness. As to whom it should be obvious, Smith and Hogan comment that while there are passages in Caldwell which suggest that an individual defendant is meant, in Lawrence the House of Lords was clearly looking at the ordinary prudent motorist as represented by the jury.²¹ If the risk appears obvious to the ordinary prudent person, then it is immaterial that the risk did not occur to the individual defendant. In addition to this, Lord Diplock treated Majewski as authority for the proposition that crimes of recklessness were crimes of basic intent to which self-induced intoxication was no defence.

3.21

It follows that: first, the fact that one is unaware of a risk owing to one's self-induced intoxication is no defence if that risk would have been obvious had one been sober; and secondly, whether it would have been so obvious has to be determined by reference to what would have been obvious to the “ordinary prudent individual”, i.e. objectively.

3.22

Lord Edmund-Davies (with whom Lord Wilberforce concurred) dissenting, lamented the majority decision, commenting that the prophecy of Dr Glanville Williams following Majewski that: “there can hardly be any doubt that all crimes of recklessness except murder will now be held to be crimes of basic

17 17 Op cit., p.60.   18 [1981] 1 All ER 961. Judgment in Lawrence was given later on the same day but after, and referred to Caldwell.   19 In considering recklessness, three states of mind can be distinguished: (i) where the risk is known;   (ii) where the risk was not considered, whether there was a risk or not; and   (iii) where it is considered whether there is a risk and it is decided that there is none. The first is the state of mind required under the Cunningham, [1957] 2 All E.R. 412, test, but under Caldwell, the second state of mind is also deemed reckless. A person with the third state of mind is not reckless in either sense.   20 Smith and Hogan, op. cit., pp.61–62.   21 Ibid, p.63.

 

 

intent within Majewski”²², was promptly fulfilled. Given the legislative tendency to replace “maliciously” by “intentionally and recklessly” in defining statutory crimes, the implications were far-reaching, he said. He concluded that:

3.33

Two propositions thus appear clear:

3.34

Glanville Williams comments:

3.35

Smith and Hogan comment that:²⁶

22 Glanville Williams, op cit, p.431.   23 [1981] 1 All ER 961 at 972.   24 Clarkson and Keating, op cit., pp.380–1.   25 Glanville Williams, op cit, p.466.   26 Smith and Hogan, op cit, p.223.

 

 

3.36

They go on to question whether:

3.37

In a later passage they comment:

The Public Order Act, 1986

3.38

Section 6(5) of the Public Order Act, 1986 provides in relation to the mental element of offences under the Act that:

27 Ibid.   28 Ibid.   29 Ibid, p.224.   30 “Intoxication” is defined in section 6(6) as meaning “any intoxication, whether caused by drink, drugs or other means, or by a combination of these means”.

 

 

The special position of murder

3.39

There is no shortage of authority for the contention that intoxication is a defence to murder, the defendant will instead be found guilty of manslaughter. In that murder cannot be committed recklessly, it is consistent with the specific intent/basic intent dichotomy. However, strictly speaking, murder is not a crime of specific intent as the mens rea does not extend beyond the actus reus. Again, the fact that it has been classified by the courts³¹ as a crime of specific intent, has to be justified on policy grounds.³²

3.40

John Sellers comments:³³

3.41

Finally, in relation to murder cases it should be noted that the defences of provocation and self defence, in particular, pose particular problems when voluntary intoxication is involved.³⁵

Intoxication and mistake

3.42

Glanville Williams states that an intoxicated person who commits a

31 Beard [1920] A.C. 479; Gallagher [1963] AC 349; and Majewski [1977] AC 443.   32 See Clarkson and Keating, op cit, p.385.   33 John Sellers, “Mens Rea and the Judicial Approach to 'Bad Excuses' in the Criminal Law” (1978) 41 M.L.R. 241 at 261.   34 Quoted in Clarkson and Keating, op cit, p.386.   35 The relationship of voluntary intoxication and defences is considered in more detail below at 4.2.viii.

 

 

criminal act owing to a mistake of fact is the target of three rules of law:

3.43

He goes on to explain that when evidence of a mistake caused by intoxication is given, three questions arise:

3.44

Recent cases, in relation to the position at common law, show that the Majewski rule applies even if the offence is one of specific intent.³⁹ The Law Commission comments in this regard that:

36 [1982] A.C. 546.   37 Glanville Williams, op cit, pp.476–7.   38 See further Glanville Williams, op cit, p.476 et seq.   39 The Law Commission, Intoxication and Criminal Liability, Consultation Paper No. 127, !993.   40 [1987] QB 995.   41 [1991] Crim. L. R. 135.

 

 

3.45

Finally, it should be noted that the Majewski approach does not apply where statute provides that a particular belief should be a defence. In Jaggard v Dickenson⁴³ the defendant while drunk broke two windows and damaged a curtain in the house of a stranger. She was charged under section 1(1) of the Criminal Damage Act, 1971. However, as her defence,⁴⁴ she raised her honest belief that the house belonged to a friend who would have consented to her breaking in and causing damage as she had been told to use the house as if it were her own. She was convicted. The court held that as the crime was one of basic intent and as her intoxication was voluntary, Majewski directed that the court should ignore evidence of intoxication on the intent issue. She appealed and her conviction was quashed. The Divisional Court held that “belief” in section 5(2) remained subjective despite the decision in Caldwell. Mustill J. held that the House of Lords in Majewski had not concluded that intoxication was irrelevant to the fact of the defendant's state of mind, rather it held that regardless of the defendant's state of mind, that for policy reasons he or she should be precluded from relying on a defence of self-induced intoxication. He went on to hold that these considerations did not apply where Parliament had, as here in section 5(2), specifically isolated a subjective element.

3.46

Clarkson and Keating ask if this decision should be regarded as anomalous (according to Smith and Hogan) or as an occasion for rejoicing in a triumph for subjectivism (according to Glanville Williams)?⁴⁵ They comment that it “does seem distinctly odd” and proceed to compare section 5(3) with section 8 of the Criminal Justice Act, 1967. The House of Lords in Majewski had held that drunkenness could not be taken into account under section 8. It is difficult to accept that section 5(3) and section 8 perform different functions.⁴⁶

3.47

The Law Commission in its Draft Criminal Code for England and Wales recommends that the decision be reversed.⁴⁷ It justifies this on the grounds that the decision created an anomalous distinction between mistake as to the non-existence of an element of an offence and mistake as to the existence of a circumstance affording a defence, which it would be wrong to perpetuate in the Code.⁴⁸

42 Op cit., pp. 19–20.   43 [1981] Q.B. 527.   44 Section 5(2) allows a defence of belief in the existence of certain exempting facts.   45 Op cit, p.590.   46 Celia Wells, “Swatting the Subjectivist Bug”, [1982] Crim. L. R. 209.   47 In Clause 22(1)(b).   48 Law Com. No. 177, Vol. II, para. 8.41.

 

 

Scotland

3.48

The effect of the law of Scotland is to distinguish between chronic and acute alcoholism.⁴⁹ Gordon explains that the chronic alcoholic eventually drinks himself or herself to death or madness, without necessarily ever being at any time drunk in the ordinary sense of the word; whereas acute alcoholism is simply the ordinary state of drunkenness.⁵⁰ The insane chronic alcoholic is not responsible for forming an insane intention, but the acute alcoholic who forms and carries out a drunken intention is responsible. Therefore, to that extent, insanity caused by intoxication is a defence to a criminal charge.⁵¹ It is probable that if one drinks oneself into a permanent state which is classified as a state of diminished responsibility, one is treated as being of diminished responsibility without any regard to the cause of the condition, provided that one is sober at the time of the offence.⁵² However, since 1977⁵³ it is clear that acute voluntary intoxication cannot constitute diminished responsibility.⁵⁴

3.49

Under Scottish law a distinction must be made between acute intoxication in cases of homicide and acute intoxication in other cases.

Acute intoxication in homicide cases

3.50

Prior to 1921, acute intoxication could not operate as a defence even where it produced temporary insanity.⁵⁵ Gordon comments that the law on intoxication as a mitigating factor was bound up with the law on diminished responsibility and was still evolving when it was supplanted by the adoption of Beard⁵⁶ in H.M. Advocate v Campbell.⁵⁷ He writes:

3.51

In 1921, in H.M. Advocate v Campbell,⁶⁰Beard was followed in the

49 Sheriff Gordon, Criminal Law of Scotland, p.401.   50 Ibid, p.400.   51 Ibid, p.402.   52 Ibid.   53 H.M. Advocate v Brennan 1977 SLT 151.   54 Gordon, op cit, p.403.   55 Ibid.   56 [1920] A.C. 479.   57 1921 J.C. 1.   58 Andrew Granger (1878) 4 Couper 86; Margaret Robertson or Brown (1886) 1 White 93; H.M. Advocate v McDonald (1890) 2 White 517; Miller and Denovan, Criminal Appeal Court, Dec. 1960, unrep.; H.M. Advocate v Kane (1892) 3 White 386; H.M. Advocate v Paterson (1897) 5 S.L.T. 13; and H.M. Advocate v Aiken (1902) 4 Adam 88. For a discussion of these cases see Gordon, op cit, pp.403–6.   59 Gordon, op cit, p.403.   60 1921 J.C. 1.

 

 

High Court and in 1944, in Kennedy v H.M. Advocate⁶¹, it was held that Beard represented Scottish law. Until 1977, the Scottish courts following Beard accepted that intoxication which prevented the formation of an intent to kill or to do serious bodily harm rendered the killing culpable homicide [manslaughter] and not murder where death resulted from an assault.⁶²

3.52

In 1977, Brennan v H.M. Advocate⁶³, overruled Kennedy. Apart from policy considerations, it did so on the ground that Beard depended on the English concept of crimes of specific intent and therefore had no bearing on Scottish law.⁶⁴ In particular, the Court held that there was no discussion or examination, in the earlier cases, of the differences and distinctions between the elements which constitute the crime of murder in the criminal law of Scotland and those which constitute the crime in England.⁶⁵ Gordon writes that, in particular Beard had no application to a crime like murder which required only wicked recklessness and not intention for its mens rea.⁶⁶

3.53

Specifically, the Court held that:

3.54

Gray remarks:

61 1944, J.C. 171.   62 J.W.R.Gray, “The Expulsion of Beard from Scotland: Murder North of the Border”, [1979] Crim. L. R. 369.   63 1977 SLT 151.   64 Gordon, op cit, p.407.   65 1977 SLT 151 at 157.   66 Op cit., p.407.   67 1977 SLT 151. (Headnote).

 

 

3.55

Gordon comments that the finding “that voluntary intoxication, far from being a defence, may itself constitute the mens rea of murder is probably easier to accommodate in Scots law than in English, because the former does not regard recklessness as wholly subjective and does not require proof of a particular mental element at the time of the crime.”⁶⁹

Acute intoxication in crimes other than homicide

3.56

Gordon comments that there are few Scottish cases on the point whereby an offender may be exculpated, but one reported case, Jas. Kinnison,⁷⁰ does support something similar to Beard in cases other than homicide.⁷¹ While there are no reported cases after Beard, in the unreported case of Alex. Winchester,⁷² the jury was directed that if the defendant had been too intoxicated to form the intention of assaulting the victim, he must be acquitted of the assault.⁷³ Gordon observes that it is not entirely clear how the decision in Brennan affects this. He states that:

68 J.W.R. Gray, op cit., p.379.   69 Op cit, p.408.   70 (1870) 1 Couper 457.   71 Ibid, p.411.   72 Glasgow High Court, October 1955.   73 Gordon, op cit, p.411.

 

 

3.57

There are two old cases in which intoxication was treated as mitigating an offence other than murder.⁷⁵ Although Brennan repudiated the view that intoxication could ever amount to diminished responsibility, a plea which in any event it described as limited to murder, it did not prevent any judge from treating involuntary intoxication as a mitigating factor.⁷⁶

3.58

Referring to involuntary intoxication, Gordon comments that addiction creates a special problem.⁷⁷ He notes that although it would probably be held by the court to be voluntary, there is much to be said for the view that as it is compulsive and the result of mental illness, it should be regarded as involuntary. But, he argues, whether or not one's drinking is regarded as involuntary there is much to be said for the view that the addict should receive special treatment.⁷⁸

3.59

Gordon concludes that:

3.60

He suggests that the public interest would be protected in a number of ways:

Australia

General

3.61

There are eight jurisdictions in Australia and they are equally divided in their approach to the issue of intoxication as a defence to a criminal charge.⁸³ In four jurisdictions (the Code States of Queensland, Western Territory and Tasmania and, it would appear, the Northern Territory) the principles in force are substantially those stated in Majewski.⁸⁴ In the other four jurisdictions (New South Wales, Victoria, South Australia and the Australian Capital Territory, the Common Law States) the principles in force are those stated in R v O'Connor.⁸⁵ The decisions on the common law distinguish between voluntary and involuntary intoxication, while some of the Codes distinguish between intentional and unintentional intoxication and these concepts are not entirely similar.⁸⁶

The Common Law States

3.62

The principle stated by the majority judges in the Australian High Court in R v O'Connor laid down the law in all Australian jurisdictions⁸⁷ except the Code States and the Northern Territory.

3.63

Fisse writes that the rule in Majewski suffers from three major defects of principle and that these defects led to the majority decision In O'Connor.⁸⁸ These defects he lists as:

81 Glanville Williams, Criminal Law, The General Part, 2nd ed., para. 183.   82 Ibid, p.414.   83 Review of Commonwealth Criminal Law, Interim Report, Principles of Criminal Responsibility and Other Matters, July 1990, Australian Government Publishing Service, Canberra, para. 10.24.   84 Ibid, para. 10.5.   85 (1981) 146 C.L.R. 64.   86 Review of Commonwealth Criminal Law, para. 10.3.   87 New South Wales, Victoria, South Australia and the Australian Capital Territory.   88 Howard's Criminal Law (5th ed.) by Brent Fisse, The Law Book Company Limited, 1990, p.439.

 

 

3.64

In O'Connor the High Court of Australia, by a majority, ruled that evidence that the defendant acted involuntarily or unintentionally as a result of gross, self-induced intoxication (by drugs, alcohol or a combination of both) might properly be considered by a jury in determining whether the prosecution had proved beyond reasonable doubt that a person charged with a criminal offence acted voluntarily and intended to commit that offence.⁹⁰ On this basis, a person who does a prohibited act while so intoxicated that there is a reasonable doubt whether that person acted voluntarily and intentionally, then that person should be acquitted. By so doing, the High Court rejected the line of House of Lords' authorities from Beard to Majewski and instead, confirmed two decisions of judges at first instance in Victoria.⁹¹

3.65

The trial judge in O'Connor had relied on Majewski and had directed the jury accordingly. However, O'Connor successfully appealed to the Victorian Court of Criminal Appeal which unanimously held that if there was evidence which raised a substantial doubt whether the act in question was a voluntary and intentional one, then that evidence should be left to the jury. It further held that it made no difference that the alleged lack of voluntariness or intent was in fact due to self-induced intoxication.⁹² The prosecution applied for leave to appeal to the High Court where by a majority of four to three, the Court upheld the decision of the Victorian Court of Criminal Appeal and held that Majewski should not be followed in Australia.⁹³

3.66

In the High Court, the majority judgements⁹⁴ emphasised the basic common law principle that criminal liability should not be imposed on an accused person unless that person was shown to have acted consciously, voluntarily and with “a blameworthy state of mind”⁹⁵ and that although intoxication was not of itself a defence, evidence that the accused was grossly intoxicated, albeit that the intoxication was self-induced, might be relevant to those questions.⁹⁶ They felt that it was not logical to distinguish between offences of specific intent and those of basic intent.⁹⁷ Nor could evidence of intoxication, however gross, be acceptable as equivalent to proof of a blameworthy state of mind, to justify the imposition of criminal liability.⁹⁸ If criminal liability was imposed without proof that the defendant acted voluntarily and intentionally, but merely on proof of

89 Ibid.   90 Law Reform Commission of Victoria, Criminal Responsibility: Intention and Gross Intoxication, Report No. 6, November 1986, para. 4.   91 R v Keogh [1964] V.R. 400; R v Haywood [1971] V.R. 755.   92 Law Reform Commission of Victoria, Report No. 6, para. 12.   93 Ibid, para. 14.   94 Chief Justice Barwick, Justices Aickin, Murphy and Stephen.   95 R v O'Connor (1981) 146 C.L.R. 64 at 96 (Stephen J).   96 Law Reform Commission of Victoria, Report No. 6, para. 15.   97 Ibid.   98 Ibid.

 

 

intoxication, that would be constructive criminal liability.

3.67

Barwick C.J. commented upon the elements of the defence in the following passage:

3.68

The minority judgments¹⁰⁰ were based on precedent and policy.¹⁰¹ They stressed the persuasive force of Majewski as a unanimous decision of seven judges of the House of Lords upholding a unanimous decision of the Court of Appeal which also accorded with the settled rules of common law and with the

99 R v O'Connor (1980) 26 A.L.R. 449 at 466–7. Cited in Gillies, op cit, p.268.   100 Justices Gibbs, Mason and Wilson.   101 Law Reform Commission of Victoria, Report No. 6, para. 20.

 

 

law in other common law jurisdictions, notably Canada and the United States.¹⁰² Furthermore, they argued that Majewski did not conflict with any Australian authority except for a few decisions of judges sitting at first instance in the Supreme Court of Victoria.¹⁰³ Finally, they approved the policy principles underlying the decision in Majewski and they argued that there were good reasons for treating self-induced intoxication as capable of negativing criminal responsibility in offences of specific intent but not in other offences.¹⁰⁴ They suggested that the difficulty in distinguishing between crimes of specific intent and those of basic intent had been exaggerated. Public policy, they said, required that intoxicated offenders should not be totally acquitted. As Gibbs J. said:

3.69

In addition, the minority indicated that the law should play a more protective role and that less freedom should be allowed to juries to “reconcile the felt needs of the community with the law”.¹⁰⁶

3.70

The effect of O'Connor is summarised by Gillies, as follows:

102 Ibid.   103 R v Keogh [1964] V.R. 400; R v Haywood [1971] V.R. 755. Judgments in New South Wales and South Australia stated the law in similar terms to Majewski: R v Menniss [1973] 2 N.S.W.L.R. 113; R v Fahey (1978) 19 S.A.S.R. 577. Cited in Law Reform Commission of Victoria Report, Report No. 6, para. 20.   104 Law Reform Commission of Victoria, Report No. 6, para. 20.   105 R v O'Connor (1981) 146 C.L.R. 64 at 93, cited in Victorian Law Reform Commission Report, Report No. 6, para. 20.   106 O'Connor, at p.139 (Wilson J). Cited in Victorian Law Reform Commission Report, No. 6, para. 21.

 

 

3.71

Fisse comments on the law following O'Connor, as follows:

The Code States

General

3.72

O'Connor is no authority on the effects of the Codes.¹⁰⁹ Therefore, the law in the Code States and the Northern Territory remains unaffected by the O'Connor decision. The distinction remains between offences of specific intent and offences of basic intent and the law is similar to that stated in Majewski.¹¹⁰ However, while the Codes are derived from the common law, effect is given to the actual wording of the Code rather the underlying common law principles.¹¹¹

Queensland and Western Australia

3.73

Section 28 of the Criminal Codes of Queensland and Western Australia states:

107 Peter Gillies, Criminal Law, 2nd ed., The Law Book Company Limited, 1990, p.271.   108 Op cit., pp.446–7.   109 R v Kusu [1980] Qd. R. 136. Cited in Review of Commonwealth Criminal Law, para. 10.7.   110 Law Reform Commission of Victoria, Report No. 6, para. 23.   111 Information supplied by the Queensland Law Reform Commission.

 

 

3.74

The law in this section is similar to that stated in Majewski, except that the section addresses intention rather than self-induced intoxication.¹¹³

Tasmania

3.75

Section 17 of the Tasmanian Criminal Code¹¹⁴ provides that evidence of intoxication is only admissible as relevant to mens rea in crimes requiring a specific intent to be proven. It provides:

3.76

It had been held that this section states the law in accordance with Majewski.¹¹⁶

The Northern Territory

3.77

The Criminal Code of the Northern Territory of Australia in section 7 provides:

3.78

Section 36 of the Code provides that:

New Zealand

General

3.79

There is no statutory provision in New Zealand dealing with the extent to which intoxication may found a defence to a criminal charge. Thus the position depends on the common law developed through the decisions of the New Zealand courts.¹¹⁸ The law now is that while intoxication is no defence per se, it should be considered to ascertain whether the accused had the required

116 See Palmer (1985) 21 A. Crim. R. 1, following Snow v The Queen [1962] Tas. S. R. 271. Cited in Review of Commonwealth Criminal Law, para. 10.8.   117 Which deals with insanity.   118 Report on Intoxication as a Defence to a Criminal Charge, Criminal Law Reform Committee, New Zealand, March 1984, para. 10.

 

 

mens rea. If the accused has not, then he or she should be acquitted, whether the alleged offence required a specific or basic intent.¹¹⁹

R v Kamipeli

3.80

The law in New Zealand has developed in a similar manner to the Australian common law states. The leading case is R v Kamipeli.¹²⁰ The case concerned a murder charge, but, nevertheless, has been accepted as authority for the proposition that evidence of gross intoxication is relevant to voluntariness and general intent and so might result in an acquittal, i.e. the accused would be acquitted not only of murder but also of manslaughter.

3.81

In Kamipeli evidence that the accused was intoxicated was relied on in support of his defence, but the trial judge directed the jury that intoxication could exclude the required intent only if the accused had been so intoxicated that his mind had “ceased to function”, so that he was “acting as a sort of automaton without his mind functioning.”¹²¹ The Court of Appeal held that it was the fact of intent rather than capacity for intent that was in issue, and that the trial judge's direction was wrong because, even if the evidence fell short of establishing the degree of intoxication he described, it remained open to the jury to conclude that the prosecution had failed to discharge the burden of proving the requisite intent.¹²²

3.82

The New Zealand Criminal Law Reform Committee comments that:

3.83

The Court rejected the specific intent theory by saying that it would amount to a situation whereby the State was exempted from proving mens rea.

3.84

Although it is open to the Court of Appeal to reject Kamipeli amd adopt Majewski it is generally accepted that unless or until it does that the lower courts are obliged to apply the law as stated in Kamipeli.¹²⁴ The result has been that there have been occasional cases were defendants have been acquitted of crimes of so-called basic intent on the grounds that the evidence of self-induced intoxication raised a reasonable doubt whether the required intent to commit the offence was present.¹²⁵

119 Law Reform Commission of Victoria Report, No. 6, para. 22.   120 [1975] 2 N.Z.L.R. 610.   121 Report on Intoxication as a Defence to a Criminal Charge, Criminal Law Reform Committee, para. 14.   122 Ibid.   123 Ibid.   124 Ibid, para. 24.   125 Ibid.

 

 

Canada

3.85

Criminal law is under federal jurisdiction in Canada. The Provinces can, nevertheless, create offences under provincial legislation under which these 'quasi-criminal' offences, as they are known, are prosecuted.¹²⁶ The Canadian Criminal Code has never contained provisions on intoxication as a defence¹²⁷ and the position is covered by common law.

Leary v R.

3.86

Although the decision in Director of Public Prosecutions v Beard has been criticised, the Canadian Supreme Court had been content to follow it.¹²⁸ In a majority decision in Leary,¹²⁹ the Canadian Supreme Court followed the House of Lords' decision in Majewski. More recently, there have been signs that the Canadian courts are questioning the structure and details of the Beard decision.¹³⁰ However, at present, the Canadian law is that involuntary intoxication may excuse criminal liability, but voluntary intoxication is no excuse unless it causes a disease of the mind or prevents the defendant from forming the specific intent required to commit an offence where such a specific intent is an element of the offence.¹³¹

3.87

In Leary¹³² the trial judge charged the jury that “drunkenness is no defence to a charge of this sort”. On appeal to the British Columbia Court of Appeal, the accused argued that this constituted a misdirection, but the appeal was dismissed. On further appeal by the accused to the Supreme Court of Canada it was held (Laskin C.J.C., Spence and Dickson, JJ., dissenting) that the appeal should be dismissed.¹³³

3.89

Pigeon J. (Martland, Judson, Ritchie, Beetz and de Grandpre, JJ. concurring) held that a distinction should be drawn between offences of general intent and those requiring a specific intent. Intoxication, he argued, could only be a defence to the latter offences and rape was a crime of general intent.¹³⁴ However, he continued, even if intoxication constituted a defence there was no evidence that the accused was drunk to such a degree as to be incapable of forming the intent to commit rape.¹³⁵ Finally, he held that even if there was some slight evidence of absence of intent due to impairment of the mind by intoxication, no miscarriage of justice had resulted.¹³⁶

126 Information provided by New Brunswick Attorney General's Office.   127 Don Stuart, Canadian Criminal Law: A Treatise, 2nd ed., The Carswell Company Ltd., Toronto, 1987, p.365.   128 Don Stuart, op cit, p.385. See MacAskill [1931] S.C.R. 330; George (1960) 128 C.C.C. 289 (S.C.C.); Perrautt [1971] S.C.R. 196.   129 (1977) 74 D.L.R. (3d) 103, S.C.C.   130 Don Stuart, op cit, p.365.   131 Law Reform Commission of Canada, Working Paper No. 29: Criminal Law – The General Part: Liability and Defences (1982).   132 (1977) 74 D.L.R. (3d) 103.   133 Ibid. (Headnote.)   134 Ibid, p.112.   135 Ibid, p.113.   136 Ibid.

 

 

3.90

Dickson J. (Laskin C.J.C. and Spence J. concurring) wrote a strong dissent. He held that intoxication as such was not a defence to a charge of rape, but evidence of intoxication should be considered by the jury, together with all relevant evidence, in determining whether the prosecution had proved beyond all reasonable doubt the mens rea required to constitute the crime.¹³⁷

3.91

Having reviewed the relevant caselaw, he suggested that subsequent courts had misinterpreted Beard and noted that:

3.92

He maintained that the distinction between specific intent and general intent crimes was no longer necessary or desirable to maintain. Furthermore, the concern should be with the mental state in fact of the accused rather than merely with his or her “capacity” to have the necessary mental state, and that intoxication was one factor which should be taken into account in determining the presence or absence of the requisite mental element.¹³⁹

3.93

He rejected the proposition embraced in Majewski that public policy demands retention of the specific intent concept regardless of how illogical or difficult the application of this concept might be.¹⁴⁰ If sanctions against becoming excessively intoxicated were thought necessary, he recommended that such sanctions should be introduced by legislation, as in the crime of being drunk and dangerous, and:

3.94

Finally, he urged that intoxication should be taken into account in determining the presence or absence of the requisite mental element and that if that element is absent, the fact that it is absent due to intoxication is no more relevant than the fact of intoxication giving rise to a state of insanity.¹⁴²

3.95

For the Canadian Bar Association, Committee of Criminal Code Reform, Hamilton¹⁴³ highlights some of the shortcomings of the present Canadian law, in particular, that it is, at present, unprincipled and arbitrary. He goes on to state that:

137 Ibid, p.115.   138 Ibid, p.120.   139 Ibid, p.121.   140 Ibid, p.123. See Keith R. Hamilton, Canadian Bar Association, National Criminal Justice Section, Committee on Criminal Code Reform, Drunkenness, Working Paper No. 5, August 27, 1991, p.6.   141 (1977) 74 D.L.R. (3d) 103 at 125. See Hamilton, op cit, p.6.   142 (1977) D.L.R. (3d) 103 at 125.   143 Op cit, p.16.

 

 

3.96

Hamilton argues that both arguments advanced for attaching criminal liability in such circumstances (i.e., first, that the accused was morally blameworthy for getting drunk and second, that to allow evidence of intoxication for all crimes would be to set “dangerous” criminals free) are equally unconvincing.¹⁴⁵ Furthermore, he maintains that the present law obliges the defendant to raise a reasonable doubt as to his or her capacity to form the specific intent required, regardless of what the defendant's actual intent was, if any. Finally, he argues that it would be a logical extension of the law, as stated in Leary, for Canadian courts to follow Caldwell in precluding evidence of intoxication in cases of recklessness.¹⁴⁶

3.97

In Leary the Supreme Court was called on to resolve a conflict of opinion between the courts of British Columbia, which held that rape was a crime of basic intent,¹⁴⁷ and those of Ontario which held that the offence required specific intent.¹⁴⁸ Therefore, voluntary intoxication could ground a defence to a rape charge in Ontario, but not in British Columbia. This dispute neatly defines the problem with the specific intent/basic intent dichotomy. Stuart comments that Mr Justice Pigeon, for the majority, in defending the basic intent classification, resorted to a highly technical examination of precedent in order to refute the Ontario view.¹⁴⁹ Subsequently, in Pappajohn¹⁵⁰ the Supreme Court defined the mens rea of rape as an intent to have sexual intercourse with knowledge or recklessness as to non-consent.¹⁵¹ However, in Regina v Moreau, the Ontario Court of Appeal, dealing with the issue of mistake of fact in a general intent offence when intoxication was alleged to be the cause of the mistake, ruled, notwithstanding Pappajohn, that:

144 Ibid.   145 Ibid.   146 Ibid, pp.16–7.   147 Broucher [1963] 2 C.C.C. 241 (B.C.C.A.).   148 Vandervoort (1961) 130 C.C.C. 158 (Ont. C.A.).   149 Don Stuart, op cit, p.368.   150 (1979) 14 C.R. (3d) 243 (S.C.C.).   151 Don Stuart, op cit, p.369.

 

 

3.98

In 1991, the House of Commons of Canada in an Bill to amend the Criminal Code¹⁵³ outlined that it would not be a defence to a charge under the relevant sections¹⁵⁴ that the accused believed that the complainant consented to the activity that formed the subject matter of the charge, where:

3.99

The Bill goes on to state¹⁵⁵ that no consent would be obtained for the purposes of the relevant sections¹⁵⁶ where, inter alia:

3.100

In 1987 Stuart wrote that since Leary, Canadian judgments generally reach the pragmatic conclusion that specific intent is required when there is an express mention of a particular intent.¹⁵⁷ Voluntary intoxication negativing a specific intent usually results in a conviction for a lesser included offence, but sometimes there will be an acquittal.¹⁵⁸ In 1988, the Supreme Court of Canada was invited to reconsider its decision in Leary in Bernard v The Queen¹⁵⁹. Hamilton comments that Bernard has firmly entrenched the specific intent/general intent dichotomy in Canadian law, but that there has been some continuing debate about the issue of capacity.¹⁶⁰

Specific and general intent

3.101

Knoll lists the following offences as some of the offences considered to require proof of a specific intent: assaulting a peace officer; attempted murder; being unlawfully in a dwelling house; breaking and entering with intent to commit

152 152 (1986) 51 C.R. (3d) 209. See Hamilton, op cit, p.8.   153 The House of Commons of Canada, Bill C–49, An Act to amend the Criminal Code (sexual assault), tabled on December 12, 1991.   154 Sections 271, 272 and 273.   155 Section 273.2.   156 Sections 271, 272 and 273.   157 Op cit., p.369.   158 Ibid.   159 [1988] 2 S.C.R. 833.   160 Op cit, pp.9–10.

 

 

an indictable offence; breaking and entering and committing an indictable offence; breaking and entering and committing an indictable offence (of specific intent); causing bodily harm with intent; murder; offering a bribe; possession of stolen property; public mischief; robbery; and theft.¹⁶¹ He lists the following offences as some of the offences considered to require proof of a general intent only: aggravated assault; assault; assault causing bodily harm; breaking and entering and committing an indictable offence (of general intent); careless handling of a firearm; dangerous driving; manslaughter; mischief; pointing a firearm; possession of a weapon; sexual assault; and sexual assault causing bodily harm.

Degree of intoxication

3.102

Where there is evidence of some degree of intoxication it is for the trier of fact to decide whether on all the evidence there is any reasonable doubt that the defendant had the capacity to form, or had, the requisite intent.¹⁶² Where the trier of fact is a jury, then it is for the judge to decide whether or not there is any evidentiary basis for the intoxication defence. If such exists, then it is for the jury to weigh such evidence.¹⁶³

3.103

The Majewski approach to intoxication was not as firmly entrenched in Canadian law by the Leary and Bernard decisions as Hamilton thought. In the case of Daviault,¹⁶⁴ a chronic alcoholic, 72 years old, was accused of sexual assault on a 65 year old woman who was partially paralysed and confined to a wheelchair. Daviault, who was found not guilty, admitted that he had got drunk, having consumed a quantity of alcohol sufficient to give him a level somewhere between 400 and 600 milligrams of alcohol per 100 millilitres of blood, but said he had no recollection of the incident. On appeal, the Quebec Court of Appeal ordered that a guilty verdict should be entered as self-induced intoxication was not a defence to a general intent offence such as sexual assault.

Daviault appealed to the Canadian Supreme Court which, by a majority of 4 to 3, held that he was entitled to a new trial. The Court decided that the rule of law established in Leary¹⁶⁵ (i.e., that even in a situation where the level of intoxication reached by the accused was sufficient to raise a reasonable doubt as to his capacity to form the minimal mental element required for a general intent offence, this should not result in an accused's acquittal) violated ss.7 and 11(d) of the Canadian Charter of Rights. Mens rea as an integral part of crime was a fundamental concept in criminal law and, while minimal in general intent offences, nevertheless existed. The requisite mental element for the offence of sexual assault was an intention to commit it, or recklessness as to whether the actions would constitute an assault, and the substituted mens rea of an intention to become drunk could not establish the mens rea to commit the assault. In

161 Patrick Knoll, Criminal Law Defences, 1987, p. 114.   162 Ibid, p.116.   163 Ibid, p. 117.   164 24 W.C.B. 2d 586.   165 (1977) 74 D.L.R. (3d) 103).

 

 

particular, the consumption of alcohol simply could not lead inexorably to the conclusion that the accused possessed the requisite mental element to commit a sexual assault, or any other crime, so that the substituted mens rea rule has the effect of eliminating the minimal mental element required for sexual assault, thereby depriving an accused of fundamental justice. If the rule in Leary was strictly applied, an accused could be convicted despite the existence of reasonable doubt pertaining to one of the essential elements of the offence. The mental element of voluntariness was a fundamental aspect of the crime which could not be taken away by a judicially developed policy. It could not be automatically inferred that there would be an objective foresight that the consequences of voluntary intoxication would lead to the commission of the offence.

Not surprisingly, this decision had led to considerable controversy in Canada.

South Africa

S v Chretien

3.104

Previously, the law in South Africa was similar to that of the common law states in Australia as stated in O'Connor. In the leading case of S v Chretien,¹⁶⁶ it was held, by a unanimous Court, that severe intoxication which rendered the accused capable of only involuntary actions, was a complete defence, as the accused committed no actus reus.¹⁶⁷ Rumpff C.J. held that a person who was “dead drunk” and could only carry out involuntary muscular movements committed no actus reus in the juridical sense of the word as the person's acts were not governed by his or her mind.¹⁶⁸ On the other hand, a person who had imbibed only a small quantity of liquor that had no noteworthy effect on his or her mental faculties should be fully punishable.¹⁶⁹ Between these two extremes lay, he said, a large variety of cases where a person had acted in a juridical sense but where the question arises as to what extent his or her inhibitions were diminished.¹⁷⁰ Rumpff C.J. laid down the following criterion regarding criminal capacity:

3.105

Regarding the specific intent doctrine and the defence of drunkenness in the case of crimes requiring negligence, he held:

166 166 [1981] 1 S.A. 1097 (A).   167 Law Reform Commission of Victoria Report, No. 6, p.9.   168 See the South African Law Commission, Report on Offences Committed Under the Influence of Liquor or Drugs, Project 49, January 1986, para. 4.4.6(i), Ch.4.   169 Ibid, para. 4.4.6(ii), Ch.4.   170 Ibid, para. 4.4.6(iii), Ch.4.   171 Ibid.

 

 

3.106

Regarding the application of the defence, Rumpff C.J. warned that if a court was lightly to accept that an intoxicated person was not criminally responsible, the administration of justice would be brought into disrepute.¹⁷³ Therefore, the Court laid down the following guideline:

South African Law Commission

3.107

This decision of the Appellate Division sparked off a lively controversy and led ultimately to the South African Law Commission investigating offences committed under the influence of liquor and drugs in 1986. The Commission was of the opinion that public opinion was not disposed to allow an offender to shield behind his or her voluntary intoxication in order to escape criminal liability.¹⁷⁵ It concluded that although very few cases occur where an accused is acquitted by reason of intoxication, the present law in this regard called for legislative intervention and therefore recommended that legislation should be passed.¹⁷⁶ A draft bill appeared in Schedule A of the Report. Schedule A provided:

The 1988 Act¹⁷⁷

3.108

An Act of Parliament was passed in 1988. The Act states:

The United States of America

The Model Penal Code

Self-induced intoxication

3.109

In the United States there have been a number of different solutions to the problems posed by the intoxication defence. Primary among these has been the approach adopted by the 1962 Model Penal Code.

3.110

The Model Penal Code recognises that evidence of intoxication can be a defence if it negatives an element of the offence,¹⁷⁸ but not in the case of

177 Act No. 1 of 1988.   178 Section 2.08(1).

 

 

recklessness. The rationalisation for this approach to recklessness in the case of an intoxicated offender relies on the assertion that voluntarily getting intoxicated is sufficiently morally blameworthy to deny a defence to a crime committed while under the influence of such intoxicant.¹⁷⁹ This approach recognises the social dangers of ruling otherwise and identifies alleged practical difficulties.

3.111

Section 2.08 of the Model Penal Code provides:

179 Don Stuart, op cit., p.379.   180 Section 4.01 of the Model Penal Code provides:   “   (1) A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality [wrongfulness] of his conduct or to conform his conduct to the requirements of law.   (2) As used in this Article, the terms 'mental disease or defect' do not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct”.

 

 

3.112

Perkins and Boyce comment that in general the Model Penal Code follows the accepted common law position.¹⁸¹ They argue that while the use of the term “self-induced” intoxication is an improvement on “voluntary intoxication”, it would, nevertheless, be more satisfactory to speak of “culpable intoxication” and “innocent intoxication”.¹⁸² They further comment that it is consistent with the prevailing position regarding specific intent and that it is in line with the existing law on the relationship between intoxication and insanity.¹⁸³

3.113

The Model Penal Code approach has been adopted in fourteen jurisdictions in the United States, most notably New York.¹⁸⁴ However, this approach has not been free from criticism.¹⁸⁵ As Perkins and Boyce have indicated, it differs little from the traditional specific intent/basic intent rule. Furthermore, the widening of the concept of recklessness has been criticised. It has been suggested that it is wrong in principle and in policy and that it may in fact be unconstitutional.¹⁸⁶

Innocent intoxication

3.114

Perkins and Boyce remark that in so far as criminal responsibility is concerned, since the refusal to place intoxication and insanity on the same basis is due to the fact that the former is usually voluntarily incurred madness, it follows that they should be dealt with in a similar manner when intoxication is innocent, and that that is the law (section 2.08(4) of the Model Penal Code¹⁸⁷).¹⁸⁸ Intoxication will be presumed to be voluntary unless some special circumstance is established to remove it from that category.¹⁸⁹ These special circumstances are: intoxication by mistake; intoxication under duress; intoxication from medicine; and other nonculpable intoxication.¹⁹⁰ Regarding the effect of innocent intoxication, Perkins and Boyce state that:

181 Perkins and Boyce, op cit., p.1015.   182 Ibid.   183 Ibid.   184 McKinney's Consolidated Laws of New York, Vol. 39 (Penal Law).   185 The Law Commission, Consultation Paper No. 127, p.42.   186 See ibid, pp.43–46.   187 See infra, para. 4.6.iii.   188 Perkins and Boyce, op cit, p.1001.   189 Ibid, p.1001.   190 Ibid, pp.1002–5.

 

 

Completely disregard the effect of voluntary intoxication

3.115

This more radical approach, similar to the approach adopted in Scotland, has been adopted in nine states in the United States, namely, Arkansas,¹⁹² Delaware,¹⁹³ Pennsylvania,¹⁹⁴ Virginia,¹⁹⁵ Missouri, Georgia,¹⁹⁶ Texas,¹⁹⁷ South Carolina and Mississipi.¹⁹⁸ The essence of the approach is an expansion of mens rea to include cases where intoxication is substituted for any intent required for an offence.

Intoxication as a full defence

3.116

Finally, Hawaii allows evidence of intoxication to negate the mental states of intention and recklessness.¹⁹⁹ Recently, the Supreme Court of Indiana has made a similar decision.²⁰⁰

Intoxication as a disease

3.117

In considering more recent development in the United States, Perkins and Boyce comment that the fact that alcoholism (dipsomania) is a disease has not received due attention in the enforcement of justice and while society's right to protect itself against such persons is beyond dispute, arrest without therapeutic treatment is not the solution. However, in considering the decisions in Robinson v California,²⁰¹Easter v District of Columbia,²⁰²Driver v Hinnant,²⁰³ and Powell v Texas,²⁰⁴ they concentrate on cases where intoxication, possession or use was an offence rather than the case of an accused pleading intoxication as a defence to another crime.²⁰⁵

European Civil Law Jurisdictions

3.118

In Germany, Switzerland and Austria intoxication is allowed as a defence to criminal liability in appropriate circumstances. This defence is treated as an aspect of voluntariness or liability. However, the self-induced condition that

191 Ibid, p.1005.   192 Arkansas Statutes Annotated, §41–207 (1977).   193 Wyatt v State 519 A.2d 649 (Delaware 1986).   194 Pennsylvania Statutes Annotated, title 18, §.00308 (Purdon, 1983) and Commonwealth v Rumsey 454 A.2d. 1121 at 1122 (1983).   195 Chittum v Commonwealth 174 SE.2d. 779 (1970).   196 See McCord, (1990) Journal of Legal History 372 at 388.   197 Texas Codes Annotated, Title 2, §8.04 and accompanying Practice Commentary by Searcy and Paterson p.233 (Vernon 1974).   198 The Law Commission, Consultation Paper No. 127, pp.49–50.   199 Hawaii Revised Statutes, §702–230 (1980).   200 Terry v State, 465 N.E. 2d 1085 (1985) at 1088. See further the Law Commission, Consultation Paper No. 127, p.63.   201 370 U.S. 660, 82 S.Ct. 1417 (1962).   202 361 F.2d 50 D.C.Cir. (1966).   203 356 F 2d 761 4th Cir. (1966).   204 392 U.S. 514, 88 S.Ct. 2145 (1968).   205 Perkins and Boyce, op cit, pp.1015–18.

 

 

excludes criminal capacity is made punishable as a matter of legal policy.

3.119

In the Netherlands and Italy self-induced intoxication is not recognised as a defence.

Germany

3.120

In German law an act is punishable only if it is voluntary. Intoxication may exclude this requirement if it results in a condition of unconsciousness and in that condition the perpetrator commits an “act” which would otherwise be regarded as a crime.²⁰⁶

3.121

An act is punishable only if the accused has criminal capacity at the time he or she committed the crime. Section 52 of the Penal Code provides that:

3.122

If it is found that the accused's “act” lacked volition or criminal capacity and if is further found that this condition was due to his or her own fault, section 323 of the Penal Code applies. Section 323 reads as follows:

3.123

The concept of negligence underlying the provision is negligence as to the risk of committing a crime while intoxicated. If the offender takes adequate precautions against committing a crime while intoxicated, there is no

206 See the South African Law Commission, Report on Offences Committed Under the Influence of Liquor or Drugs, para. 3.1.2, Ch.6.   207 Ibid, para. 3.1.3, Ch.6.   208 Translation in George P. Fletcher, Rethinking Criminal Law (1978), pp.846–52.

 

 

negligence.²⁰⁹

Switzerland

3.124

The Swiss law adopts the same approach as the German law. Section 10 of the Swiss Penal Code provides that:

3.125

Again intoxication, if it excludes criminal capacity, is made punishable as a matter of policy. Section 263 of the Swiss Penal Code provides for punishment as follows:

Austria

3.126

The same approach is adopted in Austria. Section 11 of the Penal Code provides that:

3.127

Gross intoxication is regarded as a disturbance of the consciousness. Again punishment is provided for. Section 287 of the Penal Code provides that:

209 Ibid.   210 See the South African Law Commission, op cit, para. 3.2.1, Ch.6.   211 Ibid.   212 Ibid, para. 3.3.1, Ch.6.

 

 

The Netherlands

3.128

A completely different approach is adopted under Dutch law – voluntary intoxication is no defence. However, criminal capacity is required for criminal liability and the absence of criminal capacity may lead to a finding of not guilty. Section 37(1) of the Dutch Penal Code provides that:

3.129

It is clear that only a morbid mental disorder or deficiency will lead to non-liability. Intoxication will be included only in very exceptional cases, i.e. in the case of the insane drunk. Voluntary intoxication is therefore not included.²¹⁵

3.130

The Dutch approach represents an exception to the general requirement of mens rea in criminal law, because it excludes the mens rea requirement in the case of intoxication. This is clearly a policy decision and has been criticised on jurisprudential grounds.²¹⁶

Italy

3.131

The Italian approach is similar to the Dutch one, but is far more detailed. Section 85 of the Codice Penale expressly lays down that criminal capacity is required for criminal liability. However, section 87 excludes self-induced criminal incapacity as a defence. Furthermore, section 92 provides:

3.132

The Code also distinguishes between occasional and habitual intoxication. The latter is punished more severely than the former.²¹⁸ Regarding occasional intoxication, the Code distinguishes between intoxication with intent to commit a crime (which is punishable more severely),²¹⁹ involuntary intoxication (which leads to a finding of not guilty)²²⁰ and voluntary intoxication (which is punished normaliter).²²¹

213 Ibid.   214 Ibid.   215 Ibid.   216 Ibid.   217 Ibid.   218 Codice Penale, section 94.   219 Codice Penale, section 92(2).   220 Codice Penale, section 91.   221 See the South African Law Commission, op cit, para. 3.5, Ch.6.

 

 

CHAPTER 4: PROPOSALS FOR REFORM IN OTHER JURISDICTIONS

Introduction

4.1

In this Chapter we propose to consider the recommendations for reforming the intoxication defence which have been advanced in other jurisdictions. While there is a plethora of proposed reforms, our interest will be concentrated on three approaches in particular, the introduction of, or recognition of, intoxication as a full defence to a criminal charge where the defendant can show that he or she lacked the requisite intent for the offence charged or acted involuntarily, the creation of a specific offence of intoxication, and the abolition of intoxication as a defence in any circumstance.

4.2

The Commission considers it appropriate to examine these proposals in some detail as valuable insights may be gleaned from such consideration. In particular, we consider that such an appraisal will highlight possible difficulties which either have arisen or may arise under the particular models which have been adopted elsewhere.

England And Wales

The Butler Committee Report¹

4.3

The Report of the Butler Committee on Mentally Abnormal Offenders recommended the creation of a strict liability offence whereby the courts should be given, by statute, clear power to convict those who become violent when drunk. The object was not necessarily to punish them.² It was argued that these provisions would mean that the offence would be one of strict liability in respect of the objectionable behaviour, but would require the fault element of becoming

1 Report of the Committee on Mentally Abnormal Offenders, Cmnd. 6244 (1975).   2 Ibid, para. 18.53.

 

 

voluntarily intoxicated. A mistaken belief in a circumstance of excuse (such as that the victim was about to attack so that the force was necessary by way of defence, or that the victim consented) would not be a defence unless a sober person might have made the same mistake.³

4.4

It was proposed that:

4.5

A dangerous offence was defined as one involving injury to the person, or death, or consisting of a sexual attack on another, or involving the destruction of or causing damage to property so as to endanger life.⁵ Voluntary intoxication was defined as intoxication resulting from the intentional taking of drink or a drug knowing that it was capable in sufficient quantity of having an intoxicating effect; provided that intoxication was not voluntary if it resulted in part from a fact unknown to the defendant which increased his or her sensitivity to the intoxicant.⁶

4.6

Regarding the appropriate penalty, it was recommended that on conviction on indictment of dangerous intoxication the defendant should be liable to imprisonment for one year for a first offence or for three years on a second or subsequent one.⁷ On summary trial the maximum sentence of imprisonment should be six months. In considering the scale of punishment, the Committee explained that it was not proposing an arrangement whereby intoxicated offenders obtain the benefit of a reduced punishment.⁸ It argued that the new offence would be needed only where the defendant had been acquitted of the offence originally charged. There would be no injustice to the defendant in providing for the possibility of conviction of dangerous intoxication as an alternative charge, because the evidence of intoxication would be provided by the

3 Ibid, para. 18.57.   4 Ibid, para. 18.54.   5 Ibid, para. 18.55.   6 Ibid, para. 18.56.   7 Ibid, para. 18.58.   8 Ibid.

 

 

defendant at the trial in answer to the main charge.⁹

4.7

Commenting on the proposals, in particular, that they related to dangerous offences only and that the new offence should be charged only where the accused was acquitted of the dangerous offence because of intoxication, Gray remarked:

Fourteenth Report of the Criminal Law Revision Committee¹¹

4.8

A minority of the Criminal Law Revision Committee in its Fourteenth Report proposed an amended version of this approach. It was explained that Professors Smith and Glanville Williams supported the proposal of a separate offence because, first, they considered it to be a fundamental principle that one should not be convicted of an offence requiring recklessness when one had not in fact been reckless.¹² Secondly, they thought it important that the verdict of the jury should distinguish between an offender who was reckless and one who was not because it was relevant to the question of sentence.¹³

4.9

Their proposal was set out in the following proposition:

4.10

It was agreed that if there was to be a separate offence of doing the actus reus of an offence while voluntarily intoxicated that this proposal was to be preferred to that of the Butler Committee.¹⁵

4.11

Smith and Hogan commenting on alternatives to Majewski remark:

14 Ibid, para. 263.   15 Ibid, para. 264.

 

 

4.12

The majority, however, preferred an approach which avoided the complications which they saw inherent in the creation of a new offence. In essence, their recommendation would have given legislative form to the statement of the law in Majewski, but without the additional elements introduced by Caldwell, which was not, of course, decided by the House of Lords until the following year. Their formulation, which was based on the U.S. Model Penal Code, was as follows:

4.13

The majority recognised that in making their proposals that in a few rare cases, mostly sexual offences committed while under the influence of hallucinatory drugs, that it might be possible to take advantage of the defence under (1)(a) above. For example in the case of rape, if the accused alleged that he thought that the victim was consenting when she was not, this would come within (1)(b) because recklessness as to whether she was consenting would be a sufficient mental element and evidence of voluntary intoxication would not be admissible as a defence, but if he had said that, because of his hallucinations, he did not appreciate that he was having sexual intercourse at all, he might have a defence under (1)(a) because he must intend to have sexual intercourse; recklessness not being a sufficient mental element for that part of the offence. However, they felt, that the likelihood of the jury believing his story seemed remote.²²

4.14

Subsequently, Dr. Ashworth commenting that the majority implied that intoxication alone should not attract criminal liability, asked:

19 “Voluntary intoxication” should be defined “to mean intoxication resulting from the intentional taking of drink or a drug knowing that it is capable in sufficient quantity of having an intoxicating effect, provided that intoxication is not voluntary if it results in part from a fact unknown to the defendant that increases his sensitivity to the drink or drug.” Butler Committee, op cit., para. 18.56.   20 Fourteenth Report, paras. 276–278.   21 Ibid, para. 279.   22 Ibid, para. 272.

 

 

4.15

He identified the following arguments against this as:

4.16

While the Criminal Law Revision Committee agreed that a principal defect of the Butler recommendation was the proposed label of the new offence – a single offence of being dangerously intoxicated would lump together the intoxicated child killer and the intoxicated brawler²⁵– he went on to question why the Committee objected to this. What, he asked, was the nature of “the offender's fault” in intoxicated harmdoing? He responded that “his fault lies in rendering himself insensible and uncontrolled.”²⁶

4.17

Dr. Ashworth argued that both the majority and minority, whilst apparently concerned that the label of the offence should be appropriate, appeared to view appropriateness more in terms of unargued assumptions about public opinion rather than of accurately reflecting the offender's fault.²⁷ He concluded:

23 Andrew Ashworth, “Intoxication and General Defences”, [1980] Crim.L.R. 556 at 558–9.   24 Ibid.   25 Criminal Law Revision Committee, paras. 259 and 261.   26 Ashworth, op cit, p.560.   27 Ibid, p.560.

 

 

Law Commission's Criminal Code for England and Wales²⁹

4.18

More recently, the Law Commission in its Criminal Code for England and Wales comprehensively dealt with the issue in clause 22 which reads as follows:

4.19

In its commentary,³¹ the Law Commission indicated that the aim of the

30 Law Com. No. 177, Vol. I, Clause 22.   31 Law Com. No. 177, Vol. II.

 

 

clause was to reintroduce the present law on the topic with modifications recommended by the Criminal Law Revision Committee.³² Therefore, the distinction between crimes of specific and basic intent would be preserved. That it is a somewhat complex clause was justified on the ground that it restated relatively complex law.³³

4.20

It commented that, in so far as the proof of the fault element of an offence was concerned, the law at present has a special rule for the effect of voluntary intoxication where the offence charged is one of basic intent. Agreeing with the Criminal Law Revision Committee and the American Model Penal Code relating to any offence requiring a fault element of recklessness, subsection (1)(a) provides that a person who is voluntarily intoxicated is to be treated, for the purposes of such an offence, as having been aware of any risk of which he or she would have been aware had he or she been sober.³⁴

4.21

Subsection (1) applies to an offence requiring a fault element of recklessness even where it also requires, expressly or by implication, an element of intention or knowledge.³⁵

4.22

The Commission offered two examples to illustrate the effect of its proposal in practice:

32 See supra, para. 4.12.   33 Law Com. No. 177, Vol. II, para. 8.33.   34 Ibid, para. 8.35.   35 Ibid.   36 Law Com. No. 177, Vol. I, Appendix B, Examples 22(i) and (ii).

 

 

4.23

Clause 33(1)(b)³⁷ makes it clear that an offender cannot rely on his or her drugged condition as a “state of automatism” if it arose from voluntary intoxication.³⁸

4.24

Where intoxication is voluntary, its effects depend on the fault element of the offence charged. Subsection (1)(b) again follows the recommendation of the Criminal Law Revision Committee.³⁹

4.25

The Commission went on to argue that a slightly stricter rule must apply to offences not requiring a fault element of recklessness and subsection (2) provided for this. In Jaggard v Dickinson⁴⁰ the defendant was allowed to rely on a drunken belief that she was damaging property belonging to a person who would have consented to her so doing. The effect of subsection (1)(b) is to reverse that decision.⁴¹

4.26

The Commission contended that the same anomaly would be introduced if the Code were to adopt a dictum of the Court of Appeal in O'Grady⁴² to the effect that a defendant, on a charge of an offence of “specific intent” equally with one of “basic intent”, would not be be able to rely upon evidence of an intoxicated mistaken belief in an occasion for self-defence.⁴³ In all the circumstances the Commission was satisfied that the dictum referred to must be ignored in framing the clause. The result is consistent with the view of the Criminal Law Revision Committee⁴⁴ on this topic.⁴⁵

4.27

The Commission went on to state:

4.28

The principle is stated in subsection (3).

4.29

Subsection (4) covers exceptions to subsection (1). If murder were not

37   “33.–   (1) A person is not guilty of an offence if–   (a) ...   (b) the act or condition is the result neither of anything done or omitted with the fault required for the offence nor of voluntary intoxication.”   38 Law Com. No. 177, Vol. II, para. 8.37.   39 See supra, para. 4.12.   40 [1981] Q.B. 527.   41 Law Com. No. 177, Vol. II, para. 8.40.   42 [1987] QB 995 at 999.   43 See infra, para. 4.31 & 41.   44 Fourteenth Report, paras. 276–278.   45 Law Com. No. 177, Vol. II, para. 8.42.   46 Woods (1981) 74 Cr.App.R. 312; Young [1984] 1 W.L.R.654, [1984] 2 All E.R. 164.   47 Law Com. No. 177, Vol. II, para. 8.43.

 

 

exempted, a person, who, because of intoxication, was unaware that he or she might kill, might be treated as being aware of that risk and so liable to conviction of murder. The Commission argued that this would be a departure from the long established law and from the recommendation of the Criminal Law Revision Committee.⁴⁸ Secondly, the courts having accepted that a person's unawareness or mistaken belief might be due to a combination of voluntary intoxication and mental disorder, a mental disorder verdict would be returned (so long as subsection (1) did not apply) where the defendant was suffering at the time of the act from “mental disorder” as defined in clause 34.⁴⁹ The kind of mental disorder relevant in practice, according to the Commission, would be a state of automatism (not resulting only from the intoxication itself) that is associated with an underlying condition and likely to recur. A mental disorder verdict would, it maintained, be more satisfactory than an “insanity” verdict under the present law because the court would have wide powers of disposal under the recommendations of the Butler Committee instead of being obliged to order indefinite detention of the offender.⁵⁰

Consultation Paper on Legislating the Criminal Code: Offences against the Person and General Principles⁵¹

4.30

In 1992, the Law Commission returned to the question of intoxication in its Consultation Paper on Legislating the Criminal Code: Offences against the Person and General Principles. The Law Commission stated:

48 Ibid, para. 8.44.   49   “34. 'Mental disorder' means –   (a) severe mental illness; or   (b) a state of arrested or incomplete development of mind; or   (c) a state of automatism (not resulting from intoxication) which is a feature of a disorder, whether organic or functional and whether continuing or recurring, that may cause a similar state on another occasion.   50 Law Com. No. 177, Vol. II, para. 8.45.   51 The Law Commission, Legislating the Criminal Code: Offences against the Person and General Principles Consultation Paper No. 122, 1992.   52 At para. 2.15.

 

 

4.31

It listed some of the more important reasons for this view as:

4.32

The Law Commission accepted that by proposing a thorough review of the law, it was differing from the majority of the CLRC who considered that no such review was required; and also to some extent from the view which the Law Commission had itself taken in the Code Report. However, on reconsidering the matter it was persuaded that, especially in the light of recent developments in the law of intoxication, that it could not recommend the simple adoption of the present common law without further review.⁵⁴

4.33

The Law Commission, nevertheless, went on to say that this decision that the law of intoxication required further study raised questions in relation to the treatment of intoxication in its present Bill. It stated that at the moment

53 At para. 21.1   54 Ibid.

 

 

intoxication was almost entirely a matter of common law and that its two most important effects upon criminal liability, stated broadly, were that: (1) where recklessness on the part of the offender could be established, one who was voluntarily intoxicated would be treated as having been aware of the risk of which one would have been aware had one not been intoxicated; and, (2) where a defence was based upon a belief held by a voluntarily intoxicated offender, he or she will be treated as not having held a belief that one would not have held had one not been intoxicated.⁵⁵ The Law Commission went on to say that these two rules had important implications for many matters which were dealt with in the Bill.⁵⁶

4.34

In respect of these matters the Law Commission stated that its intention should be read subject to the present law of intoxication, pending its full review of intoxication.⁵⁷ Accordingly, it concluded that specific provision should be made to reproduce in the Bill the common law on intoxication,⁵⁸ insofar as it affected matters dealt with in the Bill. The formulation draws heavily on clause 22 of the Draft Code.⁵⁹

4.35

Finally, it reiterated that the clauses in question did not necessarily represent the Commission's views of what the criminal law should ideally say in respect of intoxication and, in the event of any proposals for the reform of the present law on intoxication finding acceptance, these clauses would be replaced.⁶⁰

The Relevant Clauses

4.36

Clause 1(5)(a)⁶¹ is concerned with the relevance of voluntary intoxication where a person is charged with an offence under the Bill involving recklessness; and clauses 1(5)(b)⁶² and 23(3)⁶³ with its relevance where and

55 At para. 2.16.   56 Ibid.   57 At para. 2.17.   58 Clauses 1 (5), 23(3) and 29.   59 Consultation Paper No. 122, 1992, para. 2.18.   60 At para. 2.19.   61   “1. – (5) A person who is voluntarily intoxicated when the offence requires reference to his state of mind shall be treated-   (a) as having been aware of any risk of which he would have been aware had he not been intoxicated; and   (b) ..., and this Part has effect, in such cases, subject to those rules.”   62   “1. – (5) A person who was voluntarily intoxicated when the offence requires reference to his state of mind shall be treated-   (a) ...   (b) as not having believed in any circumstances which he would not have believed in had he not been intoxicated, and this Part has effect, in such cases, subject to those rules.   63   “23.(3) A person who was voluntarily intoxicated when the offence requires reference to his state of mind shall be treated as not having believed in any circumstances which he would not have believed in had he not been intoxicated, and this Part has effect, in such cases, subject to that rule.

 

 

accused claims to have acted on the basis of a mistaken belief that might afford a defence provided under the Bill. Clause 29⁶⁴ is concerned with the definition of the terms “intoxicant” and “voluntary Intoxication”.

Recklessness in cases of voluntary intoxication

4.37

Where an offence requires for its commission an intention to cause a specified result, or knowledge of or belief in the existence of some circumstance, the fact that the offender was voluntarily intoxicated at the time of the commission of the relevant act raises the following question: did the defendant act with the intention, knowledge or belief required for commission of the offence? At common law an important specialised rule applies to offences which may be committed recklessly and clause 1(5) (a) is designed to avoid any doubt that the rule applies to offences committed recklessly under the Bill.⁶⁵

4.38

The effect of clause 2(b)⁶⁶ of the Bill is that, for the purpose of offences under the Bill, one acts recklessly, with respect to a circumstance or a result, when one is aware that the circumstance exists or will exist or that the result will occur and it is unreasonable to take that risk. Therefore, the Caldwell rule applies to offences under the Bill.⁶⁷

4.39

The Law Commission went on to say that it might be thought arguable that the rule stated in Caldwell would apply to offences created by the present Bill even without clause 1(5)(a). It remarked that the terms in which the rule was stated were certainly apt for the purpose. However, it recognised that there was a strong argument to the contrary. Hitherto the rules of the common law relating to the effect of intoxication had not been applied to the offences of recklessness expressly defined (as in the present Bill) in terms of an actual awareness of the relevant risk. It concluded that the argument to be avoided was that the statutory requirement of awareness of a risk precluded application of a common law doctrine that would treat unawareness of that risk as immaterial.⁶⁸

Defences based on intoxicated belief

4.40

Similar considerations justified clauses 1(5)(b) and 23(3) which provide that a person who was voluntarily intoxicated “shall be treated as not having believed in any circumstance which he would not have believed in had he not

64 See infra.   65 Consultation Paper No. 122, para. 21.4.   66   “2. For the purposes of this Part of this Act a person acts-   (a) ...   (b) 'recklessly' with respect to-   (i) a circumstance when he is aware of a risk that it exists or will exist;   (ii) a result when he is aware of a risk that it will occur; and it is, in the circumstances known to him, unreasonable to take that risk; and cognate words shall be construed accordingly.”   67 Consultation Paper, No. 122, para. 21.5.   68 At para. 21.7.

 

 

been intoxicated”.⁶⁹ It argued that common law defences based on mistaken belief appeared to be subject to such a qualification. Again it was necessary to make special provision to this effect because it would be doubtful, in the absence of a special provision, whether any such rule could be held to apply “where Parliament has specifically required the court to consider the accused's actual state of belief”,⁷⁰ as in the case of the relevant defences created by the present Bill.⁷¹

4.41

In considering clause 23(3), the Law Commission explained that it prevented reliance on certain beliefs caused by voluntary intoxication and made no exception for the most serious offences requiring a so-called “specific intent”. It therefore gave effect to the opinion of the Court of Appeal in O'Grady in relation to self defence that no distinction should be drawn in relation to this aspect of the defence “between offences of what is called specific intent ... and offences of so called basic intent, such as manslaughter”. In the Code Report⁷² the Law Commission had treated this option as unsupportable, at least in so far as it denied a defence to murder to one who, albeit due to intoxication, thought that she was acting to protect her life from an aggressor. However, the difficulty of distinguishing in satisfactory terms between offences of specific intent and basic intent, and the uncertainty as to the policy governing the law's response to a defence based on an intoxicated mistake were among its reasons for deciding not, without further consideration, to advance the Draft Code's solutions to these problems. In the meantime, pending its consideration of the subject, it felt it would be preferable to state a single rule applying to all offences.⁷³

“Intoxicant” and “voluntary intoxication”

4.42

These matters are dealt with in clause 29 which reads as follows:

Consultation Paper on Intoxication and Criminal Liability⁷⁴

4.43

Most recently, in 1993, the Law Commission again looked at this troubled question and in its Consultation Paper sought views on various questions. The options considered by the Commission are set out below.

Option 1: Do nothing

4.44

This approach was rejected as unsatisfactory, in that the present state of the law is too complex and obscure, erratic in operation and difficult to apply.⁷⁵

Option 2: Codify the Majewski approach

4.45

This option took three possible forms:

Option 3: Disregard the effect of voluntary intoxication in any offence

4.46

The effect of this would be that the defendant could in no case rely on voluntary intoxication to negate mens rea.⁷⁹

4.47

One can oppose Majewski as affording an escape route to those guilty of crimes of specific intent. This option would close off this route completely.

4.48

The Law Commission puts forward the following in favour of this option:

4.49

Against this option they reiterate the arguments which cite the harshness of the approach on basic intent offenders and see force in the following observations from an American commentator:

78 See paras. 4.31–4.33   79 See paras. 4.36–4.46.

 

 

4.50

The Commission comments:

4.51

We will return to these arguments later.

Option 4: Disregard the effect of voluntary intoxication in any offence, subject to a statutory defence

4.52

Under this option it would be open to the defendant to prove, on the

balance of probabilities, that he lacked the mens rea for the offence.⁸⁰

Option 5: Abolish Majewski without replacement

4.53

This would mean that the defendant's intoxication would be taken into account with all other relevant evidence in determining whether he has the prescribed mens rea for the offence.⁸¹

Option 6: Abolition combined with a new offence⁸²

4.54

This would involve the introduction of a new offence of “criminal intoxication”. The Commission indicated that it would particularly welcome comment on this option.

4.55

Under this option it was suggested that a person who committed the actus reus of one of the listed offences⁸³ would be guilty of the new offence if the person so acted when their awareness, understanding or control was substantially impaired by reason of deliberate intoxication.⁸⁴ In particular, it was suggested that a person would not be deliberately intoxicated unless aware when taking the intoxicant that, in the amount that the person knowingly took, it would or might cause him or her to become intoxicated. Furthermore, that in adjudicating upon the question whether the defendant's intoxication was deliberate, there should be at least an evidential burden upon the defendant. An intoxicated person would not be deliberately so intoxicated if the person did not take the intoxicant of his or her own will or if the intoxication was caused by an intoxicant taken solely for medical, sedative or soporific purposes.⁸⁵ It would be immaterial to the question of liability for the offence whether the defendant did or did not form the mental element of the underlying listed offence or was in a state of automatism when causing the harm proscribed by the listed offence.⁸⁶

4.56

It was suggested that the proposed new offence could be charged alone, but that further there should be specific provision that a defendant charged with a listed offence might instead be convicted of the new offence.⁸⁷ The maximum punishment for the proposed offence should be less than, but proportionate to, that for the underlying listed offence.⁸⁸

80 See paras. 4.47–4.50.   81 See paras. 5.8–5.25.   82 See pp.36–95.   83 The provisionally proposed listed offences were: homicide; bodily harm; carnal knowledge; rape; indecent assault; buggery; assaulting a constable, and resisting or obstructing a constable, in the execution of his duty; the offences under the Public Order Act, 1986 of violent disorder, affray and putting in fear of, or provoking, violence; and finally, causing danger to road-users.   84 This would be the only requirement of the new offence subject only to a special rule relating to mistake. The Commission suggested that an intoxicated person could rely on a mistake that, objectively viewed, it would have been reasonable for a sober person to have made in the same circumstances. See paras. 6.62–6.65.   85 The meaning of “deliberate” is considered at paras. 6.52–6.61.   86 See paras. 6.76–7.77 and para. 6.80.   87 See paras. 6.81–6.83.   88 See paras. 6.42–6.47.

 

 

4.57

As a corollary of the introduction of the proposed new offence, the present Majewski approach would, of course, be abolished with the effect that in assessing the defendant's intention or subjective recklessness for the purpose of deciding his or her guilt of an existing offence, the jury would take into account the intoxication, together with all other factors, in assessing the defendant's actual subjective state of mind.⁸⁹

4.58

The Commission commented that it saw the following advantages to this approach:

4.59

While the Commission commented that it was not possible to state with confidence how the practical effect of the new offence would differ from the effect of the present Majewski approach, it remarked that it should indicate the extent to which, if at all, the new offence would or might produce convictions in cases in which, under Majewski, evidence of intoxication would be taken into account in determining the defendant's guilt. Thus, the Commission commented that:

89 See para. 6.85.   90 The Law Commission, Intoxication and Criminal Liability, para. 6.86.

 

 

Australia

The Common Law States

Law Reform Commission of Victoria, 1984 Discussion Paper⁹²

4.60

In 1984, Mrs. Loane Skene, researching for the Commission, recommended that a strict liability offence of “criminal intoxication” be introduced which should not be limited to dangerous offences but should cover any criminal act committed while voluntarily intoxicated. The proposed offence would carry the same maximum penalty as the principal offence charged. Again, the offence would be a fall-back offence, relevant only where the defendant had been acquitted of another charge by reason of his or her intoxication.⁹³ The writer suggested that the following section be inserted in the Crimes Act (Vic.) 1958:

Law Reform Commission of Victoria, 1986 Report⁹⁵

4.61

Nevertheless, the Law Reform Commission of Victoria reporting in 1986, unanimously supported O'Connor. It held that the principle stated in O'Connor was correct and should not be altered. It argued that the principle accorded with the fundamental doctrine of the criminal law that a person is not guilty of a crime unless the act was done voluntarily and intentionally.⁹⁶ It went on to say:

94 At pp.32–3.   95 Law Reform Commission of Victoria: Criminal Responsibility: Intention and Gross Intoxication, Report No. 6, November 1986.   96 At para. 39.   97 At paras. 39 and 40.

 

 

4.62

The Commission concluded that O'Connor had presented few problems in practice and that there had been few acquittals due to gross intoxication of the defendant and, in particular, such acquittals were rare in serious cases.⁹⁸

4.63

The Commission then went on to consider whether some consequential change to the law should be made in respect of dangerous acts which are involuntary or unintentional because of gross intoxication.⁹⁹ It identified three possible courses of action:

4.64

The Commission concluded that the choice between the three options should not be made in isolation as there were other involuntary or unintended, apparently purposeful acts, which result from factors, other than gross intoxication, some of which were subsumed under the heading of insanity, others under the heading of automatism. It felt that to deal with the broad issue of intoxication and criminal responsibility separately from such cases would be “unproductive and would lead to moral and legal dilemmas and confusion.”¹⁰³

4.65

The Commission went on to say that it was arguable that people who are acquitted of a criminal offence due “to mental abnormality should be detained for treatment both for the health of the offender and in order to protect society from further offences”.¹⁰⁴ It suggested that one way to achieve this result would be:

4.66

The new combined defence might include within its scope situations currently dealt with by the O'Connor doctrine.¹⁰⁶ It felt, however, that:

98 At para. 43.   99 At paras. 44–83.   100 Considered at paras. 55–61.   101 Cconsidered at paras. 62–65.   102 Considered at paras. 66–80.   103 At para. 81.   104 At para. 82.   105 At para. 82.   106 Ibid.

 

 

4.67

It concluded that the anomalies were sufficiently grave to justify a separate reference on this subject.¹⁰⁸

4.68

Finally, the Commission was evenly divided on what should be done if it was decided that such a reference should not be made. Half of the members urged that a new statutory offence should be created which would consist of committing a dangerous act while grossly intoxicated. The new offence should be a lesser included offence of which the accused could be convicted if acquitted of the principal offence charged. This would not lead to undue complication of court cases and the possibility of compromise pleas and verdicts could be overcome. The other members believed that the adoption of Option C would itself be inconsistent with the principle stated in O'Connor which the Commission had unanimously approved. It would involve the imposition of serious criminal liability for involuntary and unintentional acts and would lead to complications and difficulties in the administration of criminal justice which were not justified by the small number of acquittals.¹⁰⁹

4.69

The Victorian Law Reform Commission's recommendations did not meet with unanimous approval. In particular, The Financial Review, in an editorial, was quick to criticise the Commission's recommendations:

4.70

The Chairperson of the Victorian Law Reform Commission¹¹¹ responded in a letter to the Editor:

107 At para. 83.   108 Ibid.   109 Ibid.   110 5 March, 1987.   111 David StL Kelly.

 

 

Law Reform Commission of Victoria, 1988 Discussion Paper¹¹³

4.71

The Law Reform Commission of Victoria again considered this issue in 1988. The Commission referred to the conclusion in its earlier Report and remarked that, while it had recommended that the law remain as stated in O'Connor, it had left unresolved the issue whether some special legislative measures should be taken to deal with dangerous acts which were involuntary or unintentional because of gross intoxication.¹¹⁴ It proceeded to consider several options, namely:

Option 1

4.72

The Commission concluded that, in general, criminal sanctions should not be used as a pretext for treatment¹¹⁶ and recommended that legislation providing for a form of qualified acquittal in cases where the accused was intoxicated at the time of the alleged offence should not be introduced.¹¹⁷

112 6 March, 1987. See The Law Reform Commission (New South Wales) Report, April 1987, No. 46, p.91.   113 Law Reform Commission of Victoria, Mental Malfunction and Criminal Responsibility, Discussion Paper No. 14, August 1988.   114 At para. 226.   115 Ibid.   116 At para. 229.   117 Recommendation 34.

 

 

Option 2

4.73

The Commission concluded that a strict liability offence should not be introduced. The argument for an equivalence of penalties was in effect an abandonment of the original proposal, it said. Finally if the penalties were no different from the basic offence, it was unnecessarily confusing to provide two offences where one would suffice.¹¹⁸ It recommended, therefore, that a special offence of criminal intoxication should not be introduced.¹¹⁹

Option 3

4.74

The Commission concluded that the proposal to equate voluntary intoxication with recklessness was even less acceptable than the expedient suggested by the Butler Committee.¹²⁰ It commented that:

4.75

Consequently, it recommended that legislation which would presume recklessness in the case of voluntarily intoxicated people should not be enacted.¹²²

Option 4

4.76

The Commission concluded that the argument that voluntary intoxication was, in itself, a sufficiently blameworthy state of mind to attract criminal liability rested on nothing more than forceful assertion. It commented:

4.77

However, it continued by recognising that:

118 At para. 237.   119 Recommendation 35.   120 At para. 345.   121 Ibid.   122 Recommendation 36.   123 At para. 254.

 

 

4.78

Accordingly, the Commission concluded that the offence of causing serious bodily harm by grossly negligent act or omission should be extended to a statutory provision. It suggested that the provision should have the following effect:

Option 5

4.79

The Commission concluded that, in the absence of an intention to act, no person should be convicted of a criminal offence. Therefore, it went no further in relation to intoxication than its earlier recommendation to remove the term voluntariness from the directions given to juries. Juries should continue to be directed that criminal liability requires proof of an intention to act. It remarked that:

4.80

Consequently, it recommended, again consistently with recommendation 33,¹²⁸ that in the case of a defendant who pleads gross intoxication, the direction to the jury should not include a requirement that the act was voluntary

124 At para. 255.   125 Recommendation 33 provides that:   “The jury should not be asked to determine whether the defendant's act was conscious or voluntary. For all offences, including offences of strict liability, the question should be either: Has the defendant performed an intentional act? or, in the case of an offence based on omission: Was the defendant physically incapable of performing the act required?”   126 Recommendation 37.   127 At para. 260.   128 See supra, footnote 112.

 

 

but simply that it was intentional.¹²⁹

Law Reform Commission of Victoria, 1990 Report¹³⁰

4.81

The intoxication defence was considered again in relation to automatism in 1990 in the context of mental malfunction. The Commission considered gross intoxication and the capacity to act voluntarily.¹³¹ It noted the various ways in which intoxication can affect criminal responsibility. First, regarding awareness, it stated that many offences require proof of intention, knowledge, belief, reckless, or other 'advertent' state of mind, and that evidence of intoxication could lead credibility to a denial of the relevant state of mind. It declared that the judge must direct the jury to take account of intoxication when determining the defendant's state of mind.¹³² Secondly, regarding negligence, the Commission remarked that in the case of the more serious negligence-based offences where death or serious injury has resulted, the prosecution must prove that there was 'gross' negligence, i.e. conduct falling short of a reasonable standard of care; in these circumstances intoxication does not assist the defendant. The standard is that of a reasonable sober person.¹³³ Finally, in relation to defences, the Commission remarked that the standard for the defence of self-defence was that of a reasonable sober person and that intoxication was expressly excluded under the defence of provocation.¹³⁴

4.82

The Commission concluded that:

4.83

Finally, it recommended that:

The Code States

Queensland Criminal Code Review Committee¹⁴¹

4.84

The Queensland Criminal Code Review Committee recently recommended changes in this area. Commenting on section 28 of the present Code, the Committee recognised that there is an anomaly in the present section which, it recommended, should be removed.¹⁴² It relates to the first two paragraphs of section 28 which deal with unintentional and intentional intoxication respectively. It would appear that successful reliance on unintentional intoxication gives the accused only the benefit of the verdict appropriate to the present section 27, i.e., not guilty on the ground of unsoundness of mind. This means detention during Her Majesty's pleasure. This, it observed, would appear to be an unjust and anomalous result where, for example, the accused only became intoxicated because, unknown to him or her, his or her drinks had been “laced”. It recommended that the present first paragraph be changed along the lines recommended by Murray¹⁴³ in relation to the Western Australian Code. This provided that self-induced intoxication should be an exception to the application of the present section 23,¹⁴⁴ but allowed the excuse in the case of involuntary intoxication. Finally, the Committee commented that the term “stupefaction” was antiquated and that the generic term “intoxication” was adequate.

4.85

Regarding intention/motive, the Committee proposed that subject to the provision of the Code relating to negligent acts and omissions, a person should be criminally responsible for an act or omission which occurs independently of the exercise of his or her will, or for an event which occurs by accident.¹⁴⁵ Unless the intention to cause a particular result was expressly declared to be an element of the offence constituted, in whole or in part, by an act or omission, the result intended to be caused by an act or omission was immaterial, it held.

138 Recommendation 35.   139 Recommendation 36.   140 Recommendation 37.   141 First Interim Report of the Criminal Code Review Committee to the Attorney General, March 1991.   142 At p.92.   143 Murray, The Criminal Code, A General Review, Vol. 2 (June 1983), p.544.   144 Section 23 exempts a person from criminal responsibility if the act “occurs independently of the exercise of his will”.   145 Report, section 27.

 

 

Unless otherwise expressly declared, the motive by which a person was induced to do or omit to do an act, or to form an intention, was immaterial so far as regards criminal responsibility. Specifically with regard to intoxication it provided:

Murray Report On The Criminal Code In Western Australia¹⁴⁸

4.86

In considering criminal responsibility it was recommended that the operation of the rules in cases of automatism resulting from disease¹⁴⁹ and in cases of intoxication by the consumption of alcohol and drugs¹⁵⁰ should be clarified. Specifically regarding section 28 of the Criminal Code, it was recommended that a direct link should be created between sections 28 and 23.¹⁵¹ It was argued that this would create a sensible result in each of the five classes of cases for which the law on the defence of intoxication should cater, namely:

4.87

Finally, it was recommended that the thrust of section 28 regarding crimes of specific intent should not be altered.¹⁵⁴

152 Section 27 deals with the substantive rules on unsoundness of mind.   153 Murray Report, pp.45–6.   154 Ibid, p.46.

 

 

Law Reform Commissioner Of Tasmania

4.88

The Law Reform Commissioner of Tasmania, reporting in 1989, recommended that section 17 of the Tasmanian Criminal Code, 1924 should be repealed. The Commissioner stated:

The Northern Territory

4.89

The Northern Territory Law Reform Committee has not undertaken any studies on intoxication as a defence, but the law in the Northern Territory was recently considered by the Review Committee on the Commonwealth Criminal Law.¹⁵⁶ It commented that the law in the Northern Territory seemed to achieve a result similar to Majewski.¹⁵⁷ Finally, the Review Committee remarked that the Code, like that of Tasmania, had not managed to escape from the now discredited notion that a person is presumed to intend the natural consequences of his or her acts.¹⁵⁸

The Conclusions Of The Commonwealth Review Committee

4.90

The Review Committee stated that it saw no difficulty in deciding what the law should be regarding the effect of intoxication in certain situations. It continued:

155 Law Reform Commissioner of Tasmania: Report No. 61, Insanity, Intoxication and Automatism, 1989, p. 14.   156 Review of the Commonwealth Criminal Law, para. 10.9.   157 Ibid.   158 Ibid.

 

 

4.91

Further to the argument that O'Connor had raised no problems in practice and that there were in any event very few convictions, the Review Committee remarked that:

4.92

The Review Committee pointed out that a further practical objection to O'Connor was that self-induced intoxication would in some cases have the result that an offender would be entitled to an acquittal even to an offence of strict liability of which intoxication was an element.¹⁶²

4.93

Having briefly discussed the creation of an alternative offence as advocated by the Butler Committee and the minority of the Criminal Law Revision Committee,¹⁶³ it observed that nowhere in the common law had such an alternative offence been created. It concluded that because of this and the danger that the creation of such an offence would lead to compromise verdicts, it could not, it said, recommend the creation of such an offence.¹⁶⁴

4.94

Therefore, the Review Committee reached the conclusion that while the principle as stated in O'Connor might have the advantage of logic, it was open to some objection on the ground of public policy.¹⁶⁵ It argued that the principle as stated in Majewski was free from those objections and corresponded broadly to those in force elsewhere in the common law world. Thus, the Review Committee was led to the conclusion that the law should be stated as it presently exists in the Code States.¹⁶⁶

159 Law Reform Commission of Canada, Recodifying Criminal Law, Report No. 31. See infra, para 4.112.   160 Review of Commonwealth Criminal Law, para. 10.18.   161 At para. 10.19.   162 At para. 10.20.   163 At paras. 10.21 and 10.22.   164 At para. 10.23.   165 At para. 10.24.   166 Ibid.

 

 

4.95

As a matter of policy, the Review Committee considered that it would be unacceptable for one who has reduced oneself to a state of impaired consciousness by reason of the consumption of alcohol or drugs to be able to claim that the condition was one of automatism which would absolve one from any criminal responsibility, and considered further that no distinction could be drawn between that situation and that in which the question was whether the intoxicated person had intended to do the act which in fact was done.¹⁶⁷

4.96

The Review Committee considered that negligence should be judged according to the standards of a reasonable person, that is, a sober person, so that intoxication would in general not tend to exculpate an accused charged with negligence – rather it may likely aggravate the offence.¹⁶⁸

4.97

The Review Committee considered further that it was desirable that the law should expressly provide that a person who becomes intoxicated with a view to committing an offence and who commits the offence should be treated as having done it intentionally: this might be achieved by provisions in the terms of paragraph 29(2)(b)¹⁶⁹ of the New Zealand Crimes Bill.¹⁷⁰

4.98

Accordingly, the Review Committee recommended that:

4.99

With regard to the significance of intoxication in cases where one's acts were alleged to be beyond one's control, or where the accused was physically incapable of acting in a way required by law, because of intoxication, the recommendation regarding responsibility in general should be applied.¹⁷² In this regard, the Review Committee recommended that the proposed consolidating law should provide that:

4.100

Finally, division 8 of the Draft Bill to amend the Crimes Act, 1914 attached to the Report, provides:

New Zealand

The New Zealand Criminal Law Reform Committee¹⁷⁴

4.101

The New Zealand Criminal Law Reform Committee reported on this area in 1984. The Committee commented on the absence of a comprehensive code in New Zealand. In particular, it stated, that the Crimes Act, 1961, commonly regarded as a Criminal Code, does not contain a comprehensive General Part dealing with such matters as the need for voluntary conduct or criminal intent, or such defences as automatism and mistake.¹⁷⁵ It further remarked that while the judgment in Kamipeli¹⁷⁶ suggests that any truly criminal charge may be defended on the ground that a state of mind required for criminal liability was absent as a result of intoxication, in practice such a defence was seldom raised and if raised, it was unlikely to succeed.¹⁷⁷

4.102

Regarding intoxication as a defence, the Committee was of the opinion that there was no doubt that the present rule that mere intoxication was not a defence to any crime was right in principle and was essential for the effective

174 Criminal Law Reform Committee of New Zealand, Report on Intoxication as a Defence to a Criminal Charge, March 1984.   175 At para. 34.   176 [1975] 2 NZLR 610.   177 Report, para. 36.

 

 

operation of the criminal law.¹⁷⁸ Furthermore, the Committee commented that it was not aware of any practical difficulties arising from the relationship between intoxication and insanity.¹⁷⁹

4.103

The Committee stated that it seemed to be clear that one would have a defence to any charge if, as a result of involuntary intoxication, one did not have the state of mind required by the definition of the offence.¹⁸⁰

4.104

Regarding involuntary intoxication, the Committee said that, in view of the difficulties arising from the absence of a comprehensive Criminal Code and the limited practical importance of the defence, it had concluded that the degree of uncertainty which existed did not justify legislation.¹⁸¹ But it was, it said, also necessary to consider whether public policy might require or justify statutory intervention designed to restrict the scope for pleas founded on voluntary intoxication.¹⁸² It argued that a decision as to whether such a moral judgment might justify legislation to prevent such acquittals required an examination of the different forms such legislation might take.¹⁸³ Having considered the specific intent rule,¹⁸⁴ intoxication and recklessness,¹⁸⁵ a special offence,¹⁸⁶ special verdicts,¹⁸⁷ manslaughter,¹⁸⁸ cases where intoxication was an element of the offence,¹⁸⁹ and burden of proof,¹⁹⁰ it concluded that, with one exception,¹⁹¹ the law should remain as stated in Kamipeli.¹⁹² The law as stated in Kamipeli, it argued, was consistent with general principles of criminal liability.¹⁹³

4.105

Specifically, regarding sentencing, the Commission commented that in some cases voluntary intoxication might aggravate the offence and justify a more severe penalty than would have otherwise be appropriate.¹⁹⁴ More commonly, intoxication would be put forward in mitigation of sentence, for it would often support a claim that an offence was out of character or was unpremeditated. It went on to say that in England in the context of serious crimes it had been said that voluntary intoxication “is rarely recognised as a substantial mitigating factor when standing alone”,¹⁹⁵ although it might add some weight to other factors such as the absence of recent offending or provocation; and if it appeared that

178 At para. 40.   179 At para. 41.   180 At para. 42.   181 At para. 43.   182 Ibid.   183 At para. 47.   184 At paras. 48–55.   185 At paras. 56–60.   186 At paras. 61–70.   187 At para. 71.   188 At para. 72.   189 At paras. 73 and 74.   190 At para. 75.   191 The exception related to cases where intoxication is an element of the alleged offence, and here it recommended that statutes creating such offences should provide that the effects of voluntary intoxication should not be capable of providing a defence to a person proved to have been guilty of the prohibited conduct: para. 6.   192 At para. 76.   193 Ibid.   194 At para. 32.   195 D.A. Thomas, Principles of Sentencing, 2nd ed., pp.209–211.

 

 

the defendant suffered from alcoholism or drug addiction, the court might order treatment rather than a punitive sentence.¹⁹⁶

Revised New Zealand Code

4.106

In April 1989, in fulfilment of its election manifesto, the New Zealand Government introduced legislation revising the Crimes Act, 1961. For the first time the intoxication defence was codified.¹⁹⁷ The law was drafted to reflect the present law and substantive changes to existing provisions were minimal.¹⁹⁸

4.107

Clause 29 of the New Zealand draft Crimes Bill provides:

4.108

The draft makes no distinction between voluntary and involuntary intoxication and it deals with the effect of intoxication on the mental state of the accused, but not with the question whether the acts of the accused were voluntary.¹⁹⁹

4.109

It should be noted that on introduction of the Bill, it was referred to one of the Parliament's permanent standing committees which invited submissions and that the timetable was to return the Bill to the house before the end of 1990. However, by the end of 1989, “attacked from all sides”, the Government invited

196 Report, para. 32.   197 Simon France, “Reforming Criminal Law – New Zealand's 1989 Code”, [1990] Crim.L.R. 827.   198 At p.835.   199 Review of Commonwealth Criminal Law, para. 10.12.

 

 

the Select Committee to refer the Bill to a consultative committee for further consideration.²⁰⁰ At the time of writing that is where the Bill lies and when, if ever, it will re-emerge for a second Reading remains open to question.

Canada

Law Reform Commission of Canada, 1982²⁰¹

4.110

The Law Reform Commission of Canada, when considering reform of the law in this area in 1982,²⁰² noted that three problems arise under the present law. The first related to the difference between intoxication and mental disorder, the second concerned the nature of involuntary intoxication and the third related to the effect of voluntary intoxication in cases of specific intent offences.²⁰³ However, it concluded that:

4.111

Therefore, in order to obtain the assistance of considered commentaries, it suggested two possible alternatives: either to codify the present law clearly indicating which offences require proof of specific intent or alternatively, to introduce a new statutory offence of criminal intoxication among the inchoate offences. These propositions were set out as follows:

It proposed that a new offence of criminal intoxication similar to that proposed by the Butler Committee in 1975, be introduced. The new offence would be defined as:

It explained that this proposed offence would cover intoxicated persons who under the present law would be acquitted of “specific intent” crimes but convicted of “general offence” crimes. They would be acquitted of any offence committed by reason of intoxication but would be guilty of the new offence unless they could show that their intoxication was involuntary.

Law Reform Commission of Canada, 1988 Report²⁰⁶

4.112

The Law Reform Commission of Canada gave the area further consideration in 1988²⁰⁷ and recommended that, as a general rule, lack of culpability owing to intoxication would exclude liability, with the proviso that where the intoxication was the accused's fault, he or she would be, with one exception, liable for committing that crime while intoxicated. The exception related to killing and provided that anyone killing another while intoxicated would be liable for manslaughter.²⁰⁸ This proposition was set out as follows:

4.113

This proviso is an extension of the suggestion of the Butler Committee that a new offence of dangerous intoxication should be created.²¹⁰

4.114

Hamilton commenting on this proposal notes that it has several positive qualities, namely, that it deals comprehensively with the issue of drunkenness and that it does away with the specific intent/basic intent dichotomy and the capacity to form intent anomaly.²¹¹ However, he goes on to state that it suffers from several significant shortcomings, namely:

209 At p.30.   210 Review of Commonwealth Criminal Law, para. 10.10.   211 Op cit, p.17.

 

 

4.115

A minority of the Commission preferred a simpler, more straightforward approach. Retaining the same general rule, they would then provide an exception, i.e., that if the intoxication was the accused's own fault, that is, if it arose for some reason other than fraud, duress, compulsion or reasonable mistake, it would be no defence to a crime that can be committed by negligence. So, a person charged with murder but lacking purpose on account of voluntary intoxication could be convicted of negligent killing. To ensure conviction for arson and vandalism, negligence would have to be included as a level of culpability for these two crimes.²¹⁴ This alternative was set out as follows:

4.116

Stuart comments on the Commission's proposals as follows:

212 (1986) 51 C.R. (3d) 209.   213 Op cit., pp. 17–8.   214 Recodifying Criminal Law, p.32.   215 At p.31.   216 Reginer v Feogossa (1551) 1 Plowden 1, 75 E.R. 1 (ex.). See supra, para. 2.1.

 

 

217 Don Stuart, op cit, p.383.

 

 

CHAPTER 5: PROVISIONAL PROPOSALS FOR REFORM

Majewski

5.1

Before making any provisional proposals for reform, we must state our attitude to the Majewski approach.

5.2

We sympathise with the Law Lords' attempt to reconcile policy with settled common law principles and acknowledge their frankness and realism in acknowledging that their approach lacked logic and consistency. The distinction between crimes of basic and specific intent is, indeed, artificial and as Glanville Williams pointed out at an early stage,¹ more and more offences are being expressed as crimes of recklessness. The Commission has itself, for example, adopted the recklessness approach in recommendations on receiving,² malicious damage³ and non-fatal offences against the person.⁴

5.3

What approach do we suggest instead? Most of the opponents of the Majewski approach cannot accept the absolute exclusion of intoxication as a relevant consideration in basic intent offences. Most of those who will not accept intoxication as an absolute defence to specific intent offences recommend the creation of offences of intoxication as fall-back offences to deal with this problem.

Our Choice Of Approaches

5.4

The Commission is satisfied at this stage that the choice lies between the creation of special offences to capture cases where the capacity to form an intent is found to be absent and the complete exclusion of intoxication as a defence to

1 See, e.g., Textbook of Criminal Law, Stevens & Sons, 1978, p.68.   2 See our Report on Receiving Stolen Property, 1987, para. 130.   2 See our Report on Malicious Damage, 1988, para. 30.   2 See our Report on Non-Fatal Offences Against the Person, 1994, e.g., paras. 9.45, 9.46 & 9.51.

 

 

any offence.

Realities

5.5

To begin with, let us set out, or repeat, a few realities:

A Special Offence

5.6

It must be emphasised that this option encompasses a number of forms at a number of different levels. The offence may be labelled in a variety of ways, so that it may be termed, for instance, “criminal intoxication” or “dangerous intoxication” or something similar; or, as the commission of the particular offence while in a state of intoxication. Some considerable importance has been attached

 

 

to the particular label by commentators, in particular, by those who would wish that the label adequately reflected the seriousness of the harm executed by the intoxicated person. At another level, it is either chargeable as an alternative offence for any offence; or alternatively, for a listed offence. As we have seen, this has also given rise to a degree of concern amongst commentators. Finally, and no less controversially, the appropriate sentence on conviction may vary as either being: a nominal sentence; a sentence commensurate or proportionate to that available for the principal offence; or, the sentence may be analogous to that available for the principal offence.

5.7

The benefits of this approach are that it avoids the specific intent/basic intent dichotomy; it is consistent with principles of criminal responsibility in that an accused will not be convicted of a crime for which he or she did not have the requisite mens rea; yet the accused does not go unpunished, rather he or she is convicted of the offence of becoming dangerously intoxicated or of committing the particular offence while voluntarily intoxicated.

5.8

This approach has not gone uncriticised, in particular, it has been argued that the creation of an offence of this type represents a transparent attempt to evade principle. It is alleged that the accused is not being punished for what he did, i.e. becoming recklessly intoxicated, but because he then proceeded to commit some further criminal act while in that state? Logically, under this approach the person should be convicted for becoming recklessly intoxicated simpliciter.

5.9

While this approach is common in civil law jurisdictions, its first manifestation in the common law world seems to have been in the Butler Committee Report. The Committee recommended the introduction of an offence of dangerous intoxication whereby the accused would be liable on conviction to one-year imprisonment for the first offence or for three years on a second or subsequent one. It is generally believed that the modification of this proposal offered by Professors Smith and Glanville Williams representing the minority position of the Criminal Law Revision Committee in its Fourteenth Report⁵ is superior. They recommended that the offence should be that of doing the proscribed act while intoxicated and that on conviction the accused should be liable to the same punishment as that provided by law for the offence charged, except for murder where the punishment should be as for manslaughter.

5.10

It is instructive briefly to re-examine the comprehensive analysis of this option by the Criminal Law Revision Committee,⁶ particularly the arguments of the minority and the majority in some detail.

5.11

The minority, Professors Smith and Glanville Williams, supported the proposal of a separate offence because, in the first place, they considered it to be a fundamental principle that a person should not be convicted of an offence

5 Criminal Law Revision Committee, Fourteenth Report, Offences Against the Person. Cmnd. 7844 (March, 1980).   6 Ibid.

 

 

requiring recklessness when he or she was not in fact reckless. They argued that in such a case the verdict of the jury and the record of the court do not represent the truth. Secondly, they thought it important that the verdict of the jury should distinguish between an offender who was reckless and one who was not because that was relevant to the question of sentence. In their opinion there was a great difference between, for example, a person who knew that he or she was taking a grave risk of causing death and one who was unaware that there was any risk of any injury whatever to the person but was intoxicated. The fault of the former was in recklessly doing the act which caused injury to the person: the fault of the latter was in becoming intoxicated. They agreed that the same maximum penalty should be available to the judge in these two cases, because, exceptionally, an intoxicated offender may be such a public danger as to require the imposition of the maximum, but they were of the opinion that often the two cases ought to be dealt with differently.⁷

5.12

On the other hand, the majority of the Criminal Law Revision Committee felt that this approach would create a number of problems. First, that the separate offence would add to the already considerable number of matters which a jury often has to consider when deciding whether the offences charged have been proved. Secondly, difficulties would arise if, for example, six members of a jury were of the opinion that the accused was intoxicated so as not to be reckless whilst the other six members were of the opinion that he or she was reckless even though he or she had too much to drink. Thirdly, it seemed likely that there would be many more cases in which the accused would raise the issue of intoxication, and they foresaw cases where there would be overwhelming proof of the commission of the actus reus but in which many defendants might seek to plead to the special offence rather than the offence charged, either because they might prefer to be convicted of the special offence rather than the offence charged or because the special offence might tend to be regarded as a less serious offence. Fourthly, they considered that it was artificial and undesirable to have a separate offence for which conviction was automatic but which carried the same maximum penalty as the offence for which the defendant would have been convicted but for lack of proof of the required mental element due to intoxication. Finally, they argued that it was important to consider the public reaction to the creation of a special offence and concluded that the public would be confused by it.⁸

5.13

Again, in its Consultation Paper in 1993,⁹ the Law Commission, having rejected the notion for a number of years, returned to the idea of a new offence. It suggested that the offence would be committed by a person who, while deliberately intoxicated, caused the harm proscribed by any of the listed offences set out in the Consultation Paper. It was suggested that the new offence could be charged alone, but that there should be a special provision that a defendant charged with a listed offence might instead be convicted of the new offence. In

7 Ibid, para. 262.   8 Ibid, para. 264.   9 The Law Commission, Intoxication and Criminal Liability, Consultation Paper No. 127, 1993.

 

 

particular, it was suggested that the maximum punishment for the new offence should be less than, but proportionate to, that for the underlying listed offences.

5.14

The Victorian Law Reform Commission, in rejecting the special offence option, argued that the introduction of such an offence:

5.15

In commenting on the recommendation of the Criminal Law Revision Commission, Dr. Ashworth,¹¹ while recognising the arguments against such a proposal, asked why the law should not go further than the summary offences of public drunkenness and make intoxication itself a serious crime, as a kind of inchoate offence. There is obviously a certain logic to this. If it is the act of becoming intoxicated that eventually leads to the conviction, then should one not be convicted regardless of whether one commits a further criminal act or not?

5.16

The introduction of a new offence also arose for the consideration of the Law Reform Commission of Canada. In 1982,¹² one of its alternative recommendations was to introduce an offence of criminal intoxication which would be charged unless the accused could prove that his or her intoxication was due to fraud, duress, physical compulsion or reasonable mistake. It is interesting to note that in its 1988 Report¹³ the majority of the Commissioners endorsed this recommendation.

5.17

Finally, one of the most interesting cases where the question of the introduction of a new offence has arisen is in South Africa. In Chretien¹⁴ a unanimous court held that severe intoxication which rendered the accused capable only of involuntary actions, was a complete defence, as the accused committed no actus reus. In considering the implications of the judgment, the South African Law Commission recognised that the South African courts followed a purely jurisprudential approach to intoxication as a defence which accorded with the general principles of South African criminal law. However, it went on to note that there had been a reluctance through the centuries to allow someone who was not criminally responsible for his or her actions by virtue of the consumption of alcohol or drugs to go free for harmful acts committed by him or her in that condition. It observed that this reluctance continued to exist, and while the number of acquittals was small, nevertheless, they did occur. It stated that the purely jurisprudential approach did not satisfy the sense of justice of society with regard to that small number of cases, and it concluded that the

10 Law Reform Commission of Victoria, Mental Malfunction and Criminal Responsibility, Report No. 34, October 1990, at para. 231.   11 Ashworth, op cit.   12 Law Reform Commission of Canada, The General Part: Liability and Defences, Working Paper 29, 1982.   13 Law Reform Commission of Canada, Recodifying Criminal Law, Report 31 (1988).   14 [1981] 1 S.A. 1097 (A).

 

 

legislature should consider the possibility of placing more effective protection against intoxicated offenders on the statute book.¹⁵ In due course the 1988 Act was passed, and the law in South Africa now provides for the conviction of the intoxicated offender.

5.18

Recently, the Law Commission¹⁶ in considering this option commented that:

No Ideal Solution

5.19

Perhaps the main problem in considering this question is that all the arguments appear to be compelling whether for or against the creation of the offence of intoxication. The logic of Smith and Glanville Williams is inescapable, and yet the criticisms of their approach by the majority of the Criminal Law Revision Committee and of the Victorian Law Reform Commission are impressive. Juries (and judges) would find the special intoxication offence, at least, confusing and virtually irresistible in hard cases. The listing of offences would add to the confusion.

5.20

Ashworth is correct when he points out that, strictly speaking, the actual mischief to be addressed is getting intoxicated, not getting intoxicated and then committing the act. At that latter stage the offender is, supposedly, helpless.

5.21

There is no elegant solution or recommendation. Any solution must attract criticism from some quarter. The classical mens rea/actus reus approach to liability is a splendid model to adopt when one is dealing with the sane and sober criminal. The more intoxicated or insane the accused, the less helpful the classical intent-based doctrine becomes. Relentless adherence to the

15 South African Law Commission, Report on Offences Committed Under the Influence of Liquor or Drugs, Project 49, January 1986.   16 The Law Commission, Intoxication and Criminal Liability, Consultation Paper No. 127, 1993.   17 Ibid, para. 5.25.

 

 

jurisprudential approach in the courts, e.g. in Canada and South Africa has led to serious, justifiable and entirely predictable public disquiet.

5.22

Many practical laws are jurisprudentially 'impure'. Under our Road Traffic Acts, for example, the same act of dangerous driving can attract an enormous increase in available penalty if it causes death or serious bodily harm. When one drives out on a major road without stopping, the penalty one faces is a matter of pure chance. Simple dangerous driving is a summary offence carrying maximum penalties of six months imprisonment and/or a fine of £1,000. Dangerous driving causing death or serious bodily harm is an indictable offence carrying maximum penalties of five years imprisonment and/or a fine of £3,000. The Commission has already been compelled, regretfully, to acknowledge that, whatever the legal logic, consequences are significant in the context of the creation of offences.¹⁸

Complete Exclusion

5.23

We quoted above¹⁹ the advantages and disadvantages as seen by the English Law Commission concerning the absolute exclusion of intoxication as a defence. Perhaps the most difficult criticism to engage is that relating to the drunken burglar, i.e., the entrant who is too drunk to form an intent cannot be a burglar. Under the Larceny Act as amended, there are in simple terms two types of burglar; the one who trespasses with intent to steal, injure, rape or damage and the one who, having trespassed, steals or injures.

5.24

The entrant who is apprehended or surprised before manifesting his or her intention and who makes no admission is always difficult to prosecute unless, for example, he or she is wearing gloves or carrying other tools of the burglar's trade. The intoxicated entrant is in fact in a stronger position than the sober entrant because his or her intoxication, if so extreme as to affect intent, will be obvious and afford the explanation for being on the premises which ensures escaping prosecution for burglary.

5.25

The intoxicated entrant who steals or injures will have manifested an intoxicated choice between the two crimes. Where both criminal acts are perpetrated, e.g., where an elderly woman is raped and robbed, there is no insuperable intellectual obstacle involved in substituting the voluntary intoxication for the guilty mind in those, virtually inconceivable, cases where not even a drunken intent can be formed.

5.26

Under the Smith/Glanville Williams approach, the seriously intoxicated burglar will be charged with burglary while intoxicated, which when spelt out in full means “while intoxicated to such an extent as to be unable to form even a fleeting and transient drunken intent.” One would have to sympathise with the jury in these cases and, indeed, with the judge who has to explain to them that

18 Report on Non-Fatal Offences Against the Person, (LRC 45–1994), paras. 9.41–9.42.   19 See paras. 4.48 & 49.

 

 

one can still be found guilty of 'ordinary' burglary while intoxicated.

5.27

To propose a law under which a person may be guilty of a specific offence “while intoxicated” rather than simply to rule out intoxication as a defence in any circumstances, particularly where there will be no difference in penalty, seems to us an unwarranted exercise in splitting hairs, no matter how logically pure the basis for the proposition. The profoundly and voluntarily intoxicated person who perpetrates the criminal act does merit the stigma of conviction.

Sentencing

5.28

Intoxication is a matter for consideration at time of sentence, as a aggravating or mitigating factor, and not at time of conviction. In sentencing, the judge can order whatever course of treatment may be necessary for the genuine alcoholic. The “accidental criminal” may be given the benefit of the Probation Act.

5.29

As for the argument that society tolerates intoxication and that, therefore, extreme intoxication leading to criminal acts should not be stigmatised, it need only be pointed out that society fosters and encourages driving, spending millions on roads, but punishes severely when the privilege is abused.

Involuntary Intoxication

5.30

Involuntary intoxication should continue to be a defence.²⁰

Insanity

5.31

The mental element in crime is among the items included in the Commission's First Programme for Law Reform. The Commission had intended, understandably, to address both insanity and intoxication in an integrated approach to the mental element. However, when it came to our attention that the preparation of new legislation on insanity was at an advanced stage in the Department of Justice, we decided to concentrate our energies on the law relating to intoxication.

5.32

In these circumstances, we can but express the hope that such new legislation would ensure

Conclusion

5.33

Accordingly, we provisionally recommend that self-induced intoxication should never ground a defence to any criminal charge. This might be given legal form in a general provision (adapting the provision in s. 4 of the Criminal Justice Act, 1964)²¹ that a person shall be presumed to intend his or her actions and the natural and probable consequences of those actions but that these presumptions may be rebutted, except by evidence of self-induced intoxication. However, we would welcome views on the drafting.

5.34

Despite the foreseeable difficulties, the Smith/Glanville Williams approach provides the best alternative option.

Submissions

5.35

The Commission would welcome views on its provisional recommendations. Submissions should be addressed to:

The Secretary,

The Law Reform Commission,

Ardilaun Centre,

111 St. Stephen's Green,

Dublin 2,

and should be submitted not later than 1st May, 1995.

21 S.4 of the 1964 Act sets out the mens rea required for murder. In its Consultation Paper on Sentencing (1993), the Commission provisionally recommended the abolition of mandatory sentences for all offences, including murder.

 

 

THE LAW REFORM COMMISSION

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Report on Land Law and Conveyancing Law: (3) The Passing of Risk from Vendor to Purchaser (LRC 39–1991) (December 1991); (4) Service of Completion Notices (LRC 40–1991) (December 1991) [£ 6.00 Net]

Report on The Crime of Libel (LRC 41–1991) (December 1991) [£ 4.00 Net]

Report on United Nations (Vienna) Convention on Contracts for the International Sale of Goods 1980 (LRC 42–1992) (May 1992) [£ 8.00 Net]

Thirteenth (Annual) Report (1991) (Pl 9214) [£ 2.00 Net]

Report on The Law Relating to Dishonesty (LRC 43–1992) (September 1992) [£20.00 Net]

Land Law and Conveyancing Law: (5) Further General Proposals (LRC 44–1992) (October 1992) [£ 6.00 Net]

Consultation Paper on Sentencing (March 1993) [out of print] [£20.00 Net]

Consultation Paper on Occupiers' Liability (June 1993) [out of print] [£10.00 Net]

Fourteenth (Annual) Report (1992) (PN.0051) [£ 2.00 Net]

Report on Non-Fatal Offences Against The Person (LRC 45–1994) (February 1994) [£20.00 Net]

Consultation Paper on Family Courts (March 1994) [£10.00 Net]

Report on Occupiers' Liability (LRC 46–1994) (April 1994) [out of print] [£ 6.00 Net]

Report on Contempt of Court (LRC 47–1994) (September 1994) [£10.00 Net]

Fifteenth (Annual) Report (1993) (PN.1122) [£ 2.00 Net]

Report on The Hague Convention Abolishing the Requirement of Legalisation for Foreign Public Documents (LRC 48–1995) (February 1995) [£10.00 Net]