THE LAW REFORM COMMISSION
AN COIMISIÚN UM ATHCHÓIRIÚ AN DLÍ
The Law Reform Commission
Ardilaun Centre, 111 St. Stephen's Green, Dublin 2
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© Copyright The Law Reform Commission 1995
First Published November 1995
Cover: Entrance to the Courtyard of the King's Inns, Dublin.
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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 fifty Reports containing proposals for the reform of the law. It has also published eleven Working Papers, nine Consultation Papers and Annual Reports. Details will be found on pp.14–19.
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 Ms. Lia O'Hegarty, B.C.L., LL.M. (Michigan), LL.M. (Harvard) are Research Assistants.
Further information from:
The Law Reform Commission,
111 St. Stephen's Green,
Telephone: 671 5699.
Fax No: 671 5316.
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In its First Programme for Law Reform, the Commission proposed to examine various aspects of the criminal law. Among those aspects was the law relating to “criminal responsibility, including such matters as intoxication, necessity, duress and age”. In this Report, we examine the law relating to intoxication.
As a first step, the Commission published a Consultation Paper in February this year which examined the law in Ireland and in other jurisdictions. We discussed the options open to the Government and made a provisional proposal for reform.
We asked for observations on our Consultation Paper by 1st May, 1995.
We invited a group of experts to a meeting in our offices on July 7th to discuss issues which arose in the responses received. A number of judges and other experts attended and provided the Commission with helpful observations on these issues and a stimulating critique of its provisional recommendation.
A list of those who made written submissions is to be found in Appendix A. A list of the experts who met the Commission is to be found in Appendix B.
Except to a very limited extent, we will not repeat our examination of the law and options for reform in this Report and the Report and Consultation Paper should be read together.
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The definition of intoxication or intoxicant does not appear to have given rise to any difficulty in any jurisdiction we studied and was not raised by any of our experts.
“Intoxicant” has already been defined for the purposes of the Road Traffic Acts as including “alcohol and drugs and any combination of drugs or of drugs and alcohol”.1
For the purposes of this Report, a satisfactory definition of intoxication is to be found in para. 2.08 of the American Law Institute's Model Penal Code i.e.:
“A disturbance of mental or physical capacities resulting from the introduction of substances into the body.”
In practice, intoxication is not a defence to a criminal charge in Ireland. The President of the Commission can confirm that, in his extensive experience, no judgment of the Court of Criminal Appeal or of the Supreme Court has ever held it to be the law in Ireland that voluntary intoxication was a defence to a criminal charge.
However, no Irish Court has specifically overruled the decision in D.P.P. v. Beard2 that, in the words of Birkenhead L.C.:
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“where a specific intent is an essential element in the offence, evidence of a state of drunkenness rendering the accused incapable of forming such an intent should be taken into consideration in order to determine whether he had in fact formed the intent necessary to constitute the particular crime. If he was so drunk that he was incapable of forming the intent required he could not be convicted of a crime which was committed only if the intent was proved.”3
This passage and in particular the use of the word “specific” has led to a controversial development in the criminal law in England. As the English Law Commission observe in their recent Report on Intoxication:
“It is arguable from the context in which these words appeared that Lord Birkenhead did not mean to add anything to the meaning of the word “intent” in the opening words of this passage by his use of the word “specific” to qualify it. He may merely have meant to reiterate the law as formulated by Stephen J, or the successful argument of the Crown in Beard, which referred to specific intent as being a case where intent is an important ingredient of the offence. However, the phrase “specific intent” was picked up by judges in later cases and given a distinct, technical meaning, and this has formed the basis of the way in which the law now treats a defendant's intoxication in different ways depending on the type of offence charged.”4
Courts ultimately drew a distinction between offences of specific intent and offences of “basic” intent. Once the distinction is drawn, intoxication is, in theory, capable of affording a defence to a crime involving the doing of an act with an intent to achieve a particular objective, e.g., wounding with intent to maim. Intoxication can form a defence to such an offence in circumstances where the accused was so drunk as to be incapable of forming this “ulterior” intent. Even a drunken intent would still be a sufficient intent to support guilt. However, intoxication cannot constitute a defence to offences of basic intent, i.e. offences which can be grounded on recklessness.
The development of the law in England is explored in great detail in our Consultation Paper.
The distinction between crimes of specific and basic intent is illogical and has been attacked by such as Smith, Hogan and Glanville Williams. The availability of intoxication as a defence ultimately depends on the particular style of drafting adopted for different offences. Even some of the Law Lords themselves acknowledged the illogicality of the distinction.5 While the public policy reasons which led to the drawing of the distinction are clear, logic demands that intoxication should always be a possible defence or never be a defence. A
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compromise with a good basis in logic, which has emerged in the writings of Smith, Glanville Williams and Ashworth, among others, on the topic, would be to isolate intoxication itself as a mischief to be addressed and to create offences of intoxication or of committing criminal acts while intoxicated. Happily, the law in Ireland has not, as yet, developed in this fashion and in practice, self-induced intoxication has not afforded a defence to a charge.
The Commission's provisional recommendation was:
“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)6 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.”
We suggested that the Smith/Glanville Williams approach, i.e. the creation of a distinct offence of committing a criminal act while intoxicated, afforded the best alternative option.
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Responses from non-legal sources were almost universally in favour of our provisional recommendation. The recommendation was intended to ensure that voluntary intoxication should not enable a person evade conviction, it was certainly not intended to interfere with a court's discretion in sentencing or to act as a signal to a court to sentence alcoholics more severely. Whereas alcohol may act as an aggravating factor in some cases, the Commission can envisage it being a neutral or perhaps even a mitigating factor in others. Nothing in this Report is intended to impinge on the sentences that might be imposed following conviction of a person who was intoxicated at the time of the commission of the offence.
Responses from legal sources, with one exception, divided between those who supported our provisional recommendation and those who supported the alternative, the ability to find the accused guilty of the offence charged “while intoxicated”.
We invited a cross-section of lawyers to a meeting in our offices on 7th July, 1995. A very valuable meeting was held at which both points of view had impressive advocates. Lists of those who sent in submissions and who attended the seminar are to be found in the Appendix.
Happily, no point of view or argument emerged that had not been anticipated in our Consultation Paper. Again, no one took issue with the list of “realities” in the Consultation Paper in the context of which our provisional recommendation was
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The one exception among the submissions mentioned above advocated, in essence, the adoption of the Majewski approach, i.e. the drawing of a distinction between crimes of specific intention and crimes of recklessness. This expert also urged the Commission to work towards the emergence of a criminal code by adopting consistent concepts and standards in our Reports.
The Commission has not been asked, specifically, to codify the criminal law but between the criminal law topics in the Commission's First Programme and topics specifically referred by the Attorney General, the Commission has already addressed most of the criminal law in its reports. The Commission has already reported on: Dishonesty; Malicious Damage; Sexual Offences; Non-Fatal Offences Against the Person; Minor Offences Under the Dublin Police Acts; and Vagrancy
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A consistent feature of these reports is the recommendation that offences be based on intention (knowledge in the context of receiving) or recklessness. Without wishing to anticipate any provisional recommendations on homicide, it would not be unreasonable to anticipate a similar approach to such offences. It can safely be said that the Commission would wish to be consistent and that, ultimately, it would hope that its recommendations on the criminal law would lend themselves easily to codification.
The more offences are framed in terms of intent and recklessness, the more unreal the Majewski distinction becomes as less and less offences become offences of specific intent. While the recommendations in their recent report on Intoxication and Criminal Liability1 should bring a degree of clarity to the murky waters of existing English law on this topic, the English Law Commission cement and maintain the distinction between offences of “intention or purpose”, “knowledge or belief”, “fraud or dishonesty” and offences involving any other mental element. So, we are not inclined to follow their central recommendations. These are:
“Allegations of intention or purpose
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As in the Consultation Paper, the final choice lies between the abolition of intoxication as a defence and the creation of the offence of committing any criminal act while intoxicated. Those advocating the latter divided between those who favoured the same penalty for the new offence as for the “main“ offence and those who favoured a lesser penalty for the new offence.
One expert recommended that voluntary intoxication leading to a state of automatism should attract a special verdict, like insanity. The Commission could not accept this approach. Insanity would usually be considered to be an involuntary condition and, as in the Consultation Paper, we would not accept any form of “temporary“ insanity, brought about by voluntary intoxication, as a defence.
The argument against our proposal was in essence that the mens rea requirement was an immutable principle of the criminal law whether one was dealing with an offence of ulterior intent or an offence of recklessness and if intoxication led to an inability to form an intent or to inadvertence to risk, one would not have the necessary ingredients for the offence. One significant grouping who held this view expressly acknowledged that they were taking no account of public policy considerations.
As we said in the Consultation Paper, the traditional mens rea doctrine is an appropriate one for the sane and sober criminal, but to adhere to it in an unbending and inflexible fashion enables the offender himself, voluntarily, not just to “move the 'goalposts'” but to remove them altogether! The point was, neatly, couched in more traditional terms by Lord Mustill, dealing with offences of
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One reasonable distinction which may be made between offences of ulterior intent and offences of recklessness is that a lesser degree of intoxication would lead to inadvertence to risk than would lead to the inability to form, even a drunken, intent.
The Commission cannot put public policy considerations to one side. If the Oireachtas were to create the offence of committing a criminal act while intoxicated, there is a very real danger that this would be taken as a proclamation that intoxication was an ameliorating factor, lessening guilt and attracting a lesser sentence. To avoid this, it would not be sufficient to make available to the Court the same penalty as for the main offence. There would have to be a specific provision to the effect that a Court in sentencing for committing an offence while intoxicated must impose exactly the same sentence as it would have imposed for the main offence, committed sober. Even if this provision were made, one could not rule out a Court's, perhaps unconsciously, giving a discount for intoxication, while protesting otherwise.
The danger also exists that such a new offence would create difficulties for juries. Under the law as it stands, the question of intoxication constituting a defence is rarely, if ever, left to an Irish jury. As we have pointed out in our statement of realities, it is very difficult to envisage the state of intoxication which precludes the formation of, even, a drunken intent. It must be more difficult still to explain the defence to a jury. The exact same threshold of helplessness would have to be reached before the new offence of offending while intoxicated could be committed. Would juries appreciate that the new offence differed in a merely technical or academic way from the principal crime in respect of which the same penalty was imposed? Would the jury not wonder why the trial judge directed their attention to the new offence while at the same time reminding them that it was a crime of the same seriousness as the principal crime? The jury might form the view that if a distinction were being drawn by the trial judge, there must be a reason for this distinction and something about this crime that made it less grave.
Judicial opinion was divided on these considerations. A Senior Counsel assured the Commission that the availability of the new finding would not, as he said, “open the floodgates“, in the particular context of offences of specific intent. Even if this were so, we have seen how a verdict or sentence in an isolated case can lead to serious public disquiet and insecurity. The likelihood is that the floodgates would open in offences of recklessness and in all cases, the D.P.P.'s
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office would be inundated by offers of pleas to the offence perceived as less serious.
There was universal acceptance that involuntary intoxication should always be a defence provided it rendered one incapable of forming an intent.2 Put another way, the defence would only arise where the circumstances created the offence rather than facilitated it.3 In addition, we consider a particular recommendation of the English Law Commission to be valuable, i.e., that relating to medication:
“A person's intoxication should be regarded as involuntary if he took the intoxicant solely for a medicinal purpose, and either he was not aware that taking it would or might give rise to aggressive or uncontrollable behaviour on his part or he took it on medical advice and in accordance with any directions given to him by the person providing the advice.”
As in the Consultation Paper, our recommendation is made on the assumption that the mandatory, life sentence for murder will be abolished, as provisionally recommended in our Consultation Paper on Sentencing.4 This would permit the sentencing judge to take intoxication into account in sentencing, if appropriate, as either an aggravating or mitigating factor.
Accordingly, we adhere to our provisional recommendation. In the Consultation Paper, we set it out as a variant of the presumption in s.4 of the Criminal Justice Act, 1964 and asked for views on the drafting. We did not receive any. On reflection, we feel that a more straightforward provision might be preferable. Accordingly, we recommend that:
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Peter Charleton, S.C.
Dr. Anthony W. Clare
Kevin Haugh, S.C.
Christopher A. Murphy, Director, Drugs Awareness Programme, Crosscare
Shiela Roche, Alcohol Counsellor, Stanhope Centre
Judge Peter Smithwick, President of the District Court
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Judge Gerard Buchanan, Judge of the Circuit Court
Ms. Patricia Casey, The Law Society
Mr. Barry Donoghue, Office of the Director of Public Prosecutions
Judge Gillian Hussey, Judge of the District Court
Mr. Justice Frederick Morris, Judge of the High Court
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