Defences 1 (Intoxication And Consent) Notes

• Intoxication

  - intoxication: technically not a ‘defence’ (but convenient handle) – can operate in 2 ways:

  • 1. negate mens rea of an offence; or

  • 2. influencing factor in another legal principle/defence.

  - Intoxication negating mens rea – how?

  • principle: d. can use ev. of intoxication to show that he did not form requisite MR for offence.

    • Woolmington [1935]: prosecution must prove AR + MR beyond reasonable doubt.

    • judge must direct jury: ev. of intoxication reasonable possibility that d. did not form MR – R v Bennett [1995].

  • actual formation of MR, not capability to form MR relevant.

    • old approach: intoxication only ‘defence’ if d. incapable of forming MR – R v Beard [1920].

    • Sheehan and Moore [1974]: Beard criticised – inappropriate + inconsistent with subjective test in s8 Criminal Justice Act 1967.

    • R v Pordage [1975]: issue – did d. form requisite MR (even if still capable)?

  • if d. formed requisite MR while intoxicated, no defence: loss of inhibitions irrelevant.

    • R v Kingston [1995]: d. lured into compromising situation + poss. drugged, encouraged to abuse 15 y-o boy; did so HoL: guilty – had formed MR; drunken intent still intent: irrelevant that would not have committed offence sober.

  • if MR not present: full acquittal in certain circumstances.

  - Intoxication negating mens rea – when?

  • crimes in which intoxication may negate MR:

    • 1. involuntary intoxication: e.g. d’s drink/food ‘spiked’ or ‘laced’.

    • 2. voluntary intoxication in bona fide medical treatment.

    • 3. voluntary intoxication by non-dangerous drugs.

    • 4. crimes of specific intent.

  • evidential burden on d.: d. raises issue of intoxication prosecution must prove beyond reasonable doubt that d. formed requisite MR.

  • consider 3 questions:

    • 1. is d. voluntarily intoxicated or involuntarily intoxicated?

    • 2. is intoxicant alcohol/dangerous drug or non-dangerous drug?

    • 3. is crime of basic intent or specific intent?

    • Negating MR: Involuntary Intoxication

  - Involuntary intoxication: may be defence for any offence – R v Kingston.

  • involuntary: d. forced or deceived into taking drug/alcohol.

  • NOT mistake as to strength of alcohol – R v Allen [1988].

  • NOT if merely lowered inhibitions – R v Kingston.

  • prescription drugs: intoxication involuntary, BUT NOT if exceeding prescription.

  Negating MR: Voluntary Intoxication by Non-Dangerous Drugs

  - Voluntary intoxication by non-dangerous drugs: may be defence for any offence – R v Hardie [1985].

  • dangerous drugs vs. non-dangerous drugs: R v Hardie.

    • dangerous drugs: common knowledge that liable to cause taker to become aggressive or do dangerous/unpredictable things – inc. alcohol.

    • non-dangerous drugs: no common knowledge of dangerous effects – e.g. merely soporific/sedative.

  • basic intent crimes: issue – was d. reckless in taking the drug? (question of fact for jury).

    • e.g. R v Hardie: d. took girlfriend’s valium; started fire causing criminal damage CoA: no MR – valium for calming nerves, d. did not know of side effects.

      • voluntary intoxication by non-dangerous drug: treated as involuntary.

  Negating MR: Voluntary Intoxication by Dangerous Drugs

  - Voluntary intoxication defence to crimes of specific intent, BUT NOT basic intent – DPP v Majewski [1977].

  • facts: heavily intoxicated d. in pub brawl, attacked landlord charged with assault occasioning ABH (s47 OAPA 1861) HoL: guilty – voluntary intoxication cannot negate MR.

  • rationale: voluntary intoxication constitutes recklessness ( in fact makes MR easier to prove).

    • [Ld Elwyn-Jones]: drunkenness ‘intrinsic, integral part of crime’ – ‘reckless course of conduct’ ‘supplies. ev. of MR … sufficient for crimes of basic intent’.

  - Basic intent vs. specific intent crimes.

  • DPP v Majewski: categorisation followed until recently – [Ld Elwyn-Jones]:

    • basic intent offences: d. can be convicted on basis of recklessness as to consequences, or where no foresight of consequences required (i.e. intention as to act alone enough – e.g. s3 SOA 2003).

    • specific intent offences: intention as to outcome only form of MR available – recklessness insufficient.

      • e.g. murder, GBH with intent, s18 OAPA 1861, theft.

  • R v Heard [2007]: [Hughes LJ]: obiter: ‘no universally logical test’: policy considerations – categorisation on offence-by-offence basis.

    • facts: drunk d. rubbed penis on policewoman’s thigh; charged with sexual assault (s3 SOA 2003: MR – intention to touch); d. claimed no recollection/intent

      • CoA: guilty – sexual assault = offence of basic intent.

    • specific intent offences: require ‘proof of state of mind addressing something beyond the prohibited act itself, namely its consequences’ ([Hughes LJ]).

  • problematic – some offences difficult to categorise:

    • e.g. rape: d. ‘intentionally penetrates vagina, anus or mouth of another person with his penis’.

  • but some offences clear regardless of approach:

  - Att-Gen NI v Gallagher [1963]: Dutch courage for crime – voluntary intoxication never negates MR.

  • Dutch courage: voluntary intoxication to build up courage to commit offence.

  • policy rationale: [Ld Denning]: ‘law should take a clear stand’.

  Intoxication and Defences

  - Generally: intoxication will not enable d. to rely on a defence.

  - Loss of self-control: intoxication cannot be reason.

  • reasonable person test: reasonable person always sober.

  • in practice, intoxication detrimental to defence: prosecutor can argue alcohol was reason for loss of control.

  - Diminished responsibility: intoxication does not prevent defence.

  • test: d. suffering from abnormality of mental functioning which substantially impaired ability etc.

  - Duress + duress of circumstances: cannot rely on mistake made because of intoxication.

  • test: d. has reasonable belief that under threat – reasonable man always sober.

  - Self defence: cannot rely on mistake made because of intoxication.

  - Consent.

  • SOA 2003: d’s belief in consent must be reasonable – not if result of intoxicated mistake.

  • but: R v Richardson and Irwin [1999]: CoA: jury should be allowed to...

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