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.

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

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

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

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

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

“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:

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

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

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

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:

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:

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:

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

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

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:

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

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

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

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:

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.

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:

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:

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

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:

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:

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:

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:

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:

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:

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:

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

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

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,

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:

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

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

(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

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

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:

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

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:

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

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

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:

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:

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:

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

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

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:

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:

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

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

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

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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

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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

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

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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

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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:

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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

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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:

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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

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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:

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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:

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

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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

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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

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

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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

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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

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

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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:

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

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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

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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

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

The United States of America

The Model Penal Code

Self-induced intoxication

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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.

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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

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.

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Section 2.08 of the Model Penal Code provides:

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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

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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

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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:

Completely disregard the effect of voluntary intoxication

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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

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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

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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

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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

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

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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

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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:

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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:

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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

negligence.²⁰⁹

Switzerland

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

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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

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

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