Question 3: ‘The law on intoxication cannot escape being a pragmatic compromise between the competing demands of social defence against drunken violence and the logic of mens rea requirements’.
-Discuss in the light of comparative law.
Lord Mustill said in Kingston that the area of law on intoxication is controversial, as regards the content of the rules, their intellectual foundations, and their capacity to furnish a practical and just solution. Therefore I will start the essay of discussing the details of the English law on intoxication especially the area of compromise between the competing demands of social protection against drunken violence and the logic of mens rea requirements. In short, the area of compromise English law has tried to achieve between principle and policy. The second part will examine recent developments in the treatment of intoxicated offenders under Commonwealth criminal law .present the discussion on cultural feminism in relation to women connection to the rest of human life. The third part of this essay discusses the radical feminism that women’s connection to others experienced materially in intercourse and pregnancy is the source of women’s misery, not a source of value worth celebrating. The final part will show whether the values that flow from women’s material potential for physical connection are recognized as values by the Rule of Law,
ENGLISH LAW ON INTOXICATION:
The area of compromise:
English criminal law fundamentally demands in principle that if a defendant is to be convicted of an offence, he must be culpable for the harm caused. This is demonstrated by proof of a mental element; either that the defendant intended, or was reckless as to, the forbidden harm. Logically, such principles mean that, where the defendant is voluntarily intoxicated [FN2] at the time of causing the actus reus of an offence, so that he has not formed the required mental element, then no offence has been committed and he should be acquitted. In contrary, public policy demands that some criminal sanction should be available in such circumstances, [FN3] for otherwise a defendant will escape liability by virtue of being voluntarily intoxicated, and arguably there is culpability in the act of getting intoxicated and causing harm in such a condition. [FN4]
Here we find a curious willingness to allow utility to override justice. The case of D.P.P v. Majewski illustrates this reasoning. In a unanimous opinion, no judge was willing to alter the established rule that voluntary intoxication does not preclude general mens rea. Lord Simon contended: One of the prime purposes of the criminal law, with its penal sanctions, is the protection from certain proscribed conduct of persons who are pursuing their lawful lives…To accede to the argument on behalf of the appellant would leave the citizen legally unprotected from unprovoked violence, where such violence was the consequence of drink or drugs having obliterated the capacity of the perpetrator to know what he was doing or what were its consequences. Furthermore, Lord Salmon admitted that this position could not be defended as a matter of ‘strict logic’, but concluded that ‘this illogicality is, however, acceptable’. If a contrary position were taken, ‘the social consequences could be appalling’.
Ultimately, the above conflict between principle and policy has resulted in a compromise in English law in determining the effect of intoxication on criminal liability, with consequent inconsistency and confusion 1.
Stating the present law:
To determine criminal liability, intoxication appears irrelevant because there are varying degrees of intoxication and the issue can only be relevant in those relatively rare cases where the intoxication is so serious that it prevents the formation of a mental element. As judges have often said, ‘a drunken intent is nevertheless an intent’. [FN6] A consequence of this is that intoxication is only relevant for those crimes which require proof of a subjective mental element. For other crimes, which require proof of objective recklessness, such as criminal damage, [FN7] extreme intoxication is irrelevant. This is either because there is no mental element to be proven or because the defendant must comply with the standard of the reasonable person, who would not have been intoxicated and so would usually have foreseen the risk of harm.
Extreme intoxication may be relevant for those crimes which require proof of a subjective mental element in depending on how the offence is characterised. If it is a specific intent crime, such as murder, [FN8] then evidence of intoxication may be relied upon to show that the necessary mental element was not formed. If, however, the crime is characterised as one of basic intent, such as rape, [FN9] then intoxication cannot be relied upon to deny the existence of the mental element. The rationale for distinguishing between specific intent and basic intent crimes remains unclear, [FN10] but the existence of the distinction was affirmed by the House of Lords in Majewski. [FN11]
One explanation of the distinction is that specific intent offences are those offences requiring proof of intention, [FN12] which will not be proven because the defendant was intoxicated, whereas basic intent offences are those offences that can be committed recklessly. [FN13] If the defendant is charged with a basic intent offence then, although when the harm was caused he could not have been reckless because he was intoxicated, recklessness is deemed to exist at the time the intoxicant was taken. [FN14] This is the case in respect of alcohol and dangerous drugs, where everybody is deemed to know the effects of taking such intoxicants. The very taking of the intoxicant is deemed to be reckless and constitutes sufficient culpability to secure conviction of the basic intent offence. However, if the intoxicant was a drug the effect of which is not so well-known, then recklessness cannot be presumed and it is necessary for the prosecution to prove that the defendant foresaw the risk of unpredictable and uncontrollable conduct as a result of intoxication. [FN15]
English law has further complicated the issue of intoxication in respect of defences founded on automatism and mistakes of fact. Thus where it is alleged that intoxication induced a state of automatism, the case is treated as one of intoxication rather than automatism. The same approach has been quite vigorously pursued in cases of intoxicated mistake, bringing them under the rules of intoxication rather than mistake. In O’Grady (1987), where the defence took the form of a drunken mistaken belief in the need for self-defence, the Court of Appeal held that D could not rely on his mistake if it stemmed from intoxication. This means that where the subjective rule for mistake clashes with the objective rule for intoxication, the latter takes priority 2. The O’Grady approach should surely be confined to crimes of basic intent or recklessness. This decision has recognized the clash of approaches between mistake and intoxication. However, if the defence of mistake is available by virtue of statute, it appears that intoxication will not prevent the defendant from relying on his honest belief, even though this was induced by voluntary intoxication. [FN20]
Intoxication is a recognised defence in English law in relation to certain situations, regardless of the offence charged. This will occur where the intoxication is involuntary, [FN21] for example because a non-alcoholic drink has been laced. In such circumstances the defendant will be acquitted, assuming that the intoxication was sufficiently serious, because there is no culpability in getting into such a condition. There will also be no liability where the intoxicant has affected the defendant’s mind resulting in insanity, for example in cases of delirium tremens. [FN22]
The attack on the English approach:
The public policy concerns in Majewski have come in for criticism. This is because that for many offences it is possible to convict a defendant for causing harm, even though intoxication prevented the formation of a mental element. This is so even in respect of some specific intent offences where the defendant can be convicted of a lesser, basic intent offence. [FN23] In Majewski the House of Lords acknowledged principle by allowing intoxication to be adduced to show that the mental element for specific intent offences did not exist, but were swayed by policy objectives in convicting of basic intent offences despite intoxication. This compromise is defensible on policy grounds, [FN24] but it fails to accord with accepted principles of the criminal law.
It is not logical to compromise the requirement of mens rea on policy grounds [FN25] in relation to recklessness for basic intent offences. Clearly, the convictions are being secured for serious offences without the need to prove the requisite mens rea, is a fiction. This conflicts with the principle that the burden of proving mental elements is on the prosecution. [FN26] Equally, the fiction means that effectively objective recklessness suffices to convict of offences which require proof of subjective recklessness. A further criticism is that this deemed recklessness does not relate to the risk of specific harm being caused, which is the usual meaning of recklessness in this context, but simply relates to the risk of becoming intoxicated. This is because recklessness is imputed from the fact of intoxication, rather than from proving that the reasonable person would have foreseen the risk of harm. Consequently, liability for the harm caused whilst intoxicated is constructive, contrary to the trend of law reform this century. Finally, because the relevant recklessness is deemed to exist at the time of becoming intoxicated, liability conflicts with the general principle of contemporaneity, that actus reus and mens rea must exist at the same point of time. [FN27]
The distinction between ‘specific intent’ and ‘basic intent’ is ill-defined, even if it does have some moral coherence. [FN30] The lack of an accepted rationale for the distinction makes it difficult to characterise new crimes as being either specific or basic intent offences. [FN31] It is also uncertain whether it is the offence itself that is characterised as one of specific or basic intent, or whether each mental element of the offence should be so characterised. [FN32] Illogical distinctions also exist in respect of whether or not intoxication is relevant to mistaken beliefs, the existing distinction appearing to depend on whether or not the defence exists at common law or by statute. Furthermore, the policy objectives of the Majewski distinction are only partially fulfilled in seeking to secure convictions for crimes committed whilst intoxicated. Because there are a number of specific intent offences which cannot be reduced to lesser, basic intent offences. Most notably a number of offences which are involved with dishonesty, such as theft. If the defendant is charged with such offences and he was intoxicated at the time of committing them, then he will not be liable for anything. Also, by convicting intoxicated offenders of basic intent crimes rather than for a specific offence of causing harm whilst intoxicated, the existing law fails to identify the offender’s real culpability and punish this accordingly. [FN33]
Therefore, the question is what has gone wrong in terms of the problem of the voluntarily intoxicated defendant’s criminal liability. Some authorities have noted that the inability or unwillingness to conceptualize liability in shades of gray has contributed to difficulties here. A more important factor is that the blameworthiness of the voluntarily intoxicated offender is expressed by a finding of criminal liability. Almost certainly an enlightened system of criminal justice should respond differently to ‘common criminals’ and to voluntarily intoxicated offenders. Williams agrees that ‘if a man commits serious mischief when in drink, society must take steps against him’. On his view, the crucial issue is whether such steps should be taken within the framework of the criminal justice system. Here, as elsewhere, progress may have been retarded by the absence of effective alternative institutions of social control. Judicial insistence upon mens rea might have the virtue of removing the problem of the antisocial drunk from the criminal courts, where it does not seem to belong. Such alternatives will not be developed if criminal courts remain willing to allow all problems of antisocial behaviour to be thrust upon them. As long as criminal sanctions continue to be imposed upon the voluntarily intoxicated offender, the difficulties raised here must be addressed, and orthodox theorists have found no satisfactory solution
There are other jurisdictions which move towards an exculpatory intoxication doctrine that drunkenness might be a defence wherever it negated mens rea. In this part I will particularly concentrate in three jurisdictions, for example: Australia, New Zealand and Germany.
Australian and New Zealand Law:
There are several common law jurisdictions which allow intoxication to negative mens rea. In The Queen v. O’Connor [FN3] the defendant had stabbed a police officer in the arm. There was evidence that, as a result of voluntary intoxication from a combination of alcohol and a hallucinogenic drug, the defendant might not have intended to act as he did. The High Court of Australia rejected Majewski in holding that voluntary intoxication could provide a defence to a charge of unlawful wounding offence. It further held that at common law self-induced intoxication may be relied upon to support a denial of any requirement that conduct, circumstances or consequences be intended, known or foreseen, or that conduct be conscious and voluntary. In Australia O’Connor does not apply in those States which have criminal Codes because they impose a specific intent rule which appears to be to the same effect as Majewski [FN6]. But it remains authoritative where the position is governed by the common law. The High Court has further held that as it establishes that evidence of intoxication may be relevant whenever it is necessary to prove the mental element of a crime it may support acquittal of manslaughter, if the defendant’s conduct might have been involuntary [FN7
The High Court of Australia approved the judgment of the New Zealand Court of Appeal in Kamipeli [FN4] where it was said that no distinction should be drawn between offences where a general intent suffices and those where a particular intent is required, and that evidence of intoxication was relevant to whether it should be inferred that a defendant acted with the intention or recklessness required by the charge. [FN5] In New Zealand, where the partial Code (the Crimes Act 1961) does not contain a provision dealing with intoxication, the Court of Appeal has left open whether Majewski should be followed in preference to the view earlier adopted in Kamipeli, [FN8] and also the more particular question whether self-induced intoxication can ever support a defence to manslaughter. [FN9] Although, pending a review of the matter by the Court of Appeal, New Zealand courts apply the principles in Kamipeli. [FN10]
It is clear that the rejection of the specific intent rule gives increased scope for acquittals based on evidence of intoxication. There are occasional cases where charges requiring only basic intent are successfully defended on the basis that intoxication led to mistake as to essential circumstances, [FN11] or might even have resulted in absence of intent to do the proscribed act. [FN12] However, the possibility of such acquittals is enhanced by the fact that in neither country has the courts regarded Caldwell [FN13] as being of general application. An express or implicit requirement of recklessness is held to require actual awareness of the risk in question, [FN14] unless a particular statutory context indicates otherwise.
With one exception, it seems that the position is different if a defendant relies on a mistaken belief as to some matter of defence. In respect of private defence, this exception arises in New Zealand. This justifies such defensive force as is reasonable in the circumstances as the defendant believes them to be, and defines by section 48 of the Crimes Act 1961. However, the contrary view of the common law adopted in O’Grady, [FN15] there seems to be no doubt that this statutory formula allows a defendant to rely on a mistaken assessment of the circumstances even when this is attributable to self-induced intoxication. [FN16] There are other cases in Australia and New Zealand, where a mistaken belief as to a matter of defence will exclude liability only if it is supported by reasonable grounds. In Zecevic v. D.P.P. [FN17] the High Court of Australia held that this was the rule for self-defence at common law, and no doubt the same applies in the case of other defences, [FN18] a conclusion supported by the New Zealand Court of Appeal in relation to duress. [FN19] Voluntary intoxication will be relevant to the determination whether the mistake might actually have been made, where an excusing mistake must be both honest and reasonable, but it will not be relevant to the reasonableness of any such mistake. [FN20]
Social protection and moral culpability:
It is clear that the arguments of social protection and moral culpability had been considered by the judges in Australia and New Zealand due to recognise intoxication as a general criminal law defence. In these jurisdictions complete acquittal as a result of intoxication raising doubt as to a required state of mind is not unknown, but it is very unusual. [FN23] This may in part be due to juries and judges being unwilling to give effect to what they regard as an unmeritorious principle, [FN24] but it also reflects the reality that while intoxication may often contribute to and explain intentional offending it will seldom result in the absence of the modest mental requirements of intention, awareness and foresight that generally suffice for mens rea. In fact, academic and expert speculation might obscure this, but it can be appropriately brought home to the jury. It was recognised in Kamipeli [FN25] that it is proper, and necessary, for the jury to be warned that absence of intent because of intoxication ‘is a conclusion not to be lightly reached’. Further, the issue may be removed from the jury’s consideration if there is no evidence which could reasonably support such a conclusion. In both Australia and New Zealand consideration has been given to whether this area of the law is in need of reform, but to date enactment of a more restrictive rule due to social policy has not been found appropriate or necessary. Both O’Connor and Kamipeli have been regarded as sound in principle and have not resulted in numerous acquittals, and have not been responsible for increased crime or collapse in respect for the law. [FN26]
In considering moral culpability, a person is to be regarded guilty of wrongful conduct to the extent when he deliberately becomes substantially intoxicated is something on which opinions will differ, but it must vary according to the individual’s experience and circumstances. Nevertheless, there are cases where neither the individual’s experience nor the circumstances of the intoxication suggest any real risk of aggressive and dangerous behaviour, while it is common knowledge that intoxication may lead this [FN29]. It will be appropriate to note, in such a case, that even gross voluntary intoxication does not involve such a degree of culpability as to justify criminal liability. [FN30] We also should remember that an assessment of the badness of the conduct causing the actus reus might naturally be affected by how and why it was caused, even if it is assumed that it would not have occurred but for substantial intoxication. [FN31] If a person stumbles into another who suffers injury as a result it is not obvious that there should be criminal liability simply because the stumbler was very drunk. The case for liability seems even weaker if only property damage is caused by the trip 4.
German law takes completely different approach, reconciling to the conflicting principle of liability for the risk implicit in getting drunk. German law includes intoxication along with mental illness as a basis for denying the capacity to be held accountable for a wrongful act. It recognises an independent intoxication offence. Article 330a of the German Criminal Code provides that:
“(1) whoever intentionally or negligently becomes intoxicated through the use of alcohol or other intoxicating substances is punishable up to five years in prison, if while in that intoxicated condition he commits a wrongful act and if by virtue of the intoxication is not responsible for that act (or his non-responsibility is a possibility).
(2) In no event may the punishment be greater than that for the wrongful act committed in the state on intoxication. ”
It seems that the concept of negligence underlying this provision is negligence as to the risk of committing a crime while intoxicated. Therefore, there is no negligence in defendant’s part if he takes adequate precautions against committing a crime while intoxicated. For example, if the defendant hires someone to supervise his conduct while he is intoxicated and the hired person unexpectedly fails to restrain him. He then will have a good case against criminal liability.
Furthermore, if the defendant gets drunk in a pub and while in a state of non-responsibility he throws a glass at a valuable mirror, his punishment will not be for the wrongful act of intentionally destroying the property of another; rather punishment will be for the wrongful act of creating a risk that he would behave non-responsibly and intentionally destroy property. Ultimately, the requirement of a wrongful act while intoxicated is playing a vital role in convicting the defendant in German law. Following, the defendant is not liable under Article 330a, if someone assaults him while he is drunk and he responds in self-defence, as his act is not wrongful. Again, the defendant will not be found liable if he does an act which is not wrongful under the code. For example, he negligently destroys property in the pub. So, the theory of the provision is not simply that the defendant negligently take the risk that he might do some harm. The requirement of a wrongful act while intoxicated is an important limitation. Accordingly, if risk-taking were the essence of the crime, there would be no concern about the wrongfulness of the intoxicated act. Indeed it would be hard to explain why the subsequent act should be required at all. Therefore, it is appropriate to say that one could think of the offence by analogy to the principle of accessorial liability in the wrongful but excusable acts of another. By getting drunk the defendant becomes an accessory, as it were, in his own wrongful, but excusable act. This is not the prevailing understanding of the crime, but the prevailing theory of risk-taking fails to account adequately for a wrongful act as a condition of liability.
THE LOGIC OF MENS REA REQUIREMENTS
The best solution:
Options for Reform:
It remains to consider various proposals for reforming the law of intoxication these should not be regarded, individually or collectively, as a panacea for all the ills in this area. As we shall see, they deal exclusively with the so-called Majewski compromise according to which intoxication may be a defence to crimes of specific, but never to crimes of basic intent. In the result, they have little or no bearing on the other issues discussed in this chapter. Broadly speaking, proposals for reform fall under three heads: those favouring the creation of an independent intoxication offence; those advocating a special verdict of guilty but intoxicated; and suggestions for the expansion of the definition of recklessness so as to include voluntary intoxication, respectively.
The best known proposal for an independent intoxication offence was put forward by the Butler Committee in England. It recommended the creation of an offence of ‘dangerous intoxication’ to cover cases where ‘a person while voluntarily intoxicated does an act (or makes an omission) that would amount to a dangerous offence if it were done or made with requisite state of mind for such offeence’. The new offence would only come into operation where an accused had been acquitted on account of intoxication of a dangerous offence which was defined for this purpose as one ‘involving injury to the person (actual bodily harm) or death or consisting of a sexual attack on another, or involving the destruction of or causing damage to property so as to endanger life’. The penalty for a first offence was to be a maximum of one year’s imprisonment and three years for repeated offences.
The main weakness in this arrangement is that it fails to take account of the type or quantum of harm done by the drunken defendant: the accused would be convicted of the same offence whether he killed, raped or committed a minor assault on his victim. Other criticisms include the fact that the proposed offence is confined to crimes against the person and that the penalties attached to it are too lenient. This outcome is defensible on the principle that the defendant’s fault consists in getting drunk, not in what he did whilst in that state; but is unlikely to prove acceptable in a legal culture which has always measured responsibility in terms of harm done as well as intended or foreseen. German law also recognises an independent intoxication offence. Article 330a of the German Criminal Code provides that: “whoever …intoxication”
The German solution arguably meets the second and third criticisms of the Butler proposal mentioned above in that it comprehends all crimes and not just offences against the person and provides for relatively stiff penalties, respectively. But it too seems vulnerable to the criticism that a conviction under the article does not reflect the type or seriousness of the harm caused by the accused.
The idea that there should be a special verdict of ‘guilty but intoxicated’ was suggested by a minority of the Criminal Law Revision Committee in England in 1980. the advantage of this suggestion is that it would enable the jury to return a verdict that reflected the harm done by the defendant while at the same time allowing the court to adjust the penalty to take account of the accused’s culpability (or lack of it, as the case may be). The difficulty with this option is that it is not clearly better than the Majewski rule, since it too entails convicting the intoxicated defendant for harm of which he may have been unaware by reason of intoxication.
The idea that, except in the cases of murder and crimes that require nothing less than intention, recklessness should be construed as including voluntary intoxication was also put forward by the English Criminal Law Revision Committee. This would simplify the law in that it would enable the courts to dispense with the cumbersome distinction between crimes of specific and basic intent; the latter would be redundant since all crimes of so-called basic intent can be committed recklessly. However, like the Majewski rule, it would not distinguish between the genuinely subjectively reckless defendant and the defendant who was not reckless in any sense other than in becoming intoxicated, and so hardly represents a significant improvement on it. The relative merits of the Australian alternative to Majewski have already been discussed.
The Law reform Commission has recently expressed the view that intoxication is not, and should never be, a defence to a criminal charge in Ireland. Even if it is interpretated as a statement about Irish law stricto sensu, the first part of this proposition is open to question. In Manning, decided in 1953, the Court of Criminal Appeal expressly approved the capacity standard of intoxication as defence to murder; and more recently, in Davis, also a murder case, Costello J. (as he then was) directed the jury to consider the issue of intoxication in light of the capacity standard. Moreover, as the Law reform Commission itself concedes, ‘no Irish court has specifically overruled the decision in D.P.P v. Beard. The acknowledged source of the capacity standard throughout the common law world. Indeed, in People (D.P.P) v. McBride, decided after the Law Reform Commission published its Report, it is noteworthy that the Court of Criminal Appeal did not demur from the proposition, put forward by counsel for the appellant ‘that intoxication can be relevan on sic the question of whether the accused was capable of forming the particular intent which is one of the ingredients of the offence’.
The thesis that Irish law should eschew the intoxication defence altogether is also questionable. Given the paucity of indigenous decisions on substantive criminal law, it seems unwise to view this or that aspect of Irish law in isolation from the broad currents of judicial opinion that have crystalised in other common law jurisdiction and that enjoy tha status of persuasive precedent in Irish courts. Since the balance of common law opinion on the issue of intoxication is overwhelmingly in favour of the Majewski compromise, it is submitted that Irish law should continue to adhere to it. It should also be borne in mind that the Director of Public Prosecution appears not to press charges in relation to crimes of specific intent where he is satisfied, usually on independent legal advice, that the defendant lacked the requisite intent by reason of intoxication. While the exercise of prosecutorial discretion in favour of defendants in these circumstances does not equate to a defence of intoxication, it does suggest that the Majewski compromise, or something like it, has firm roots in Irish legal culture and exerts a significant, albeit subterranean, influence on the outcome of cases where intoxication is thought to have a bearing on culpability.
Finally, it is submitted that the argument for maintaining the status quo is strengthened by the fact that the Law Reform Commission resiled from its earlier espousal of a ‘guilty but intoxicated’ but as an alternative to Majewski, and was not moved to recommend any of the other alternatives discussed above.
The issue of intoxication is buffeted between two conflicting principles. One principle is that if someone voluntarily gets drunk and then commits a crime, his prior fault in getting drunk should deprive him of the claim that he was not responsible for his drunken acts. Thus one frequently finds statutory provisions, in the United States as well as in Continental codes, holding that self-induced intoxication is not a defense to any crime. But the period at the end of this provision is in fact only a semicolon. For it is obviously unjust to hold that an intoxicated actor is responsible for all crimes that he might commit as a result of drinking excessively and taking the risk of irresponsible conduct. His fault in rendering himself non-responsible at the time of the violent act is constant, whether he commits a burglary, a rape, or a murder. To bring the scope of his liability into line with his culpability in getting drunk, the law seeks a compromise. There has to be some accommodation between (1) the principle that if someone gets drunk, he is liable for the violent consequences, and 2) the principle that liability and punishment should be graded in proportion to actual culpability.
The compromise crafted by the common law is entirely different. The approach is to permit evidence of intoxication to reduce the crime to a lower degree, but not to admit evidence of self-induced intoxication if it would result in a total acquittal. The California Penal Code incorporates this compromise by stipulating that intoxication is admissible only to negate a “particular purpose, motive, or intent” that is necessary “to constitute a particular species or degree of crime”. When the particular purpose, motive, or intent is undercut by proof of intoxication, the effect is not to deny liability, but merely to reduce the offense to one of a lower species or degree. The clearest cases falling within this analysis are crimes defined by committing one offense with the ulterior intent of committing another. Examples are: assault with intent to rape or kill, and burglary, which is defined as breaking and entering with the intent to commit a felony. The general understanding is that intoxication is admissible in order to negate the ulterior intent (to rape, to commit the felony inside the house), but inadmissible to negate the intent required for the base crime (the intent to assault, the intent to break and enter).
This general understanding is expressed by invoking the concepts of general and specific intent. The general intent is the intent accompanying the base offense; the specific intent goes beyond the base offense to reach further unrealized objectives. This distinction glides well through the sea of crimes defined by the pattern “assault with intent to …” yet the distinction scrapes bottom as soon as we consider more compactly defined offenses, such as murder and larceny. Though malice does not represent an unrealized goal that goes beyond the act of killing, the courts treat it as a form of specific rather than general intent. This view facilitates a compromise between the rigors of denying the relevance of intoxication and allowing it to undercut all liability; in this respect, the classification is functionally sound.
Larceny is a more difficult case, for the intent required, namely, the intent permanently to deprive the owner of his property, does not serve to raise a base offense to a higher order of liability. If that intent is effectively refuted, the defendant should be able to extricate himself from all levels of liability. The charge of larceny could be reduced to the lesser, included offense of criminal trespass, but it is difficult to argue, in the language of the California statute, that the difference between trespass and larceny is one of “species or degree”. Also, it is perfectly plausible to think of an intoxicated actor killing intentionally, but without malice. It is more difficult to think of intoxication negating the intent required for larceny yet leaving intact the intent required for criminal trespass. Thus in the context of larceny and other theft offenses, it becomes more difficult to find the appropriate middle ground in which to recognize the exculpatory effect of self-induced intoxication without allowing intoxication to function as a total excuse.
The distinction between general and specific intent is frequently litigated, for the simple reason that the courts tend to employ these terms as though they had a meaning beyond their function as devices for seeking a compromise verdict. The difficulty with taking the term ‘specific intent’ seriously is that the same term is employed in a variety of contexts that have nothing to do with intoxication as an excuse.
Sometimes, the term ‘specific intent’ is used simply to refer to a well-defined intent, such as the intent ‘permanently to deprive the owner of his property’ as opposed to the unclarified intent implicitly required for assault, rape or breaking and entering. In the totally different context of criminal attempts, the term ‘specific intent’ functions to distinguish puporsely causing a result from merely causing it knowingly, recklessly, or negligently. It is often said, for example, that attempted murder requires a specific intent to kill, not merely reckless conduct that knowingly entails a high risk or death.
It is not surprising that counsel would repeatedly press precedents from three distinct fields in an effort to classify an intent as ‘specific’ for the purposes of intoxication as an excuse. Sometimes the courts accept these arguments and admit intoxication as exculpatory evidence in larceny cases. Assault with a deadly weapon invites a similar process of transplanting precedent. If assault is defined as attempted battery, and attempts require a ‘specific intent’, it is plausible to argue that assault with a deadly weapon requires a ‘specific intent’ and that intoxication should be admissible to negate that intent. If the intent is disproved, the result is not a reduction to a lower offense, but an outright acquittal. The California supreme Court recently decided two cases in an effort to fend off this argument and to preserve the principle of compromise verdicts in cases of intoxication.
There should be a better way to solve the problem of intoxication than by moving the counters called ‘general’ and ‘specific’ intent. The Model Penal Code recommends that intoxication should be admissible so far as it negates ‘an element of the offense’. The difficulty with this approach is that it allows too much to turn on whether the legislature happens to define assault and rape to include elements of knowledge and intention or whether those elements are taken to be only implicitly required. The Model Penal Code itself defines rape without adverting to a required mental state. Yet rape obviously requires at least knowledge that the actor is engaged in sexual intercourse with a woman. Would it follow from the Code’s language in defining rape that ‘knowledge’ is not an element of the offense and therefore that intoxication is inadmissible on the issue? This ambiguity could be corrected by a more explicit definition of rape, but that leaves open the question whether self-induced intoxication ought to be a complete excuse in rape cases. The common-law distinction between general and specific intent provides a better guide to that issue than the simple model of negating the mental state required for the offense.
The problem is how we should break away from the confusing doctrines of general and specific intent and yet preserve some social response to rape and assault induced by intoxication.
1) Lord Elwyn-Jones states that self-induced intoxication is ‘a reckless course of conduct’ and that ‘reckless is enough to constitute the necessary mens rea in assault cases’. In what senses is the word ‘reckless’ being used in these two
Proposals for Reform:
Law Com. No. 229, Legislating the Criminal Code: Intoxication and Criminal Liability (1995)
The option canvassed in LCCP 127
5.2 In LCCP 127 we put forward the following policy options for consideration:
Options which would retain the Majewski principle
1) Do nothing.
2) Codify the Majewski approach, in one of three different ways:
i)codify the present law without amendment;
ii)adopt the proposals of the CLRC and the rule in the American Model Penal Code, so as to apply Majewski only to allegations of recklessness; or
i) adopt a simplified version of (ii), under which a state of voluntary intoxication would itself constitute recklessness in law.
Options which would entail disregarding the effect of voluntary intoxication.
3) Disregard the effect of voluntary intoxication in any offence, with the effect that the defendant could in no case rely on voluntary intoxication to negative mens rea.
4) Disregard the effect of voluntary intoxication in any offence (as in option 3), but subject to a statutory defence whereby it would be open to the defendant to prove, on the balance of probabilities, that he lacked the mens rea of the offence.
Options which would entail abandoning the Majewski principle
5) Abolish the Majewski approach without replacement, so that the defendant’s intoxication would be taken into account with all the other relevant evidence in determining whether he had the prescribed mental element of the offence.
6) Combine the abolition of the Majewski approach with the introduction of a new offence of ‘criminal intoxication’, which would be committed by a person who, when deliberately intoxicated to a substantial extent, caused the harm proscribed by one of a number of offences in a fixed list. We provisionally proposed that the maximum sentence for the new offence should be significantly lower than that for the underlying listed offence.
5.7 As a result , although we had formulated six possible options for reform, we provisionally favoured only options 5 and 6, both of which involved the total abandonment of the Majewski principle. As with all our law reform work, when we published the consultation paper we looked forward with keen interest to receiving and considering the responses to our provisional views.
Summary of our main recommendations:
1.34 our main recommendations can be summarised as follows:
the present law of intoxication should be codified, with a few significant amendments.
Where the prosecution alleges any intention, purpose, knowledge, belief, fraud or dishonesty, evidence of intoxication should be taken into account in determining whether that allegation has been proved.
For the purpose of any allegation of any other mental element of an offence (in particular, allegations of recklessness or awareness of risk), a voluntarily intoxicated defendant should be treated as having been aware of anything of which he would have been aware but for his intoxication.
A person should not escape liability on the ground of automatism alone if his automatism is wholly or partly caused by voluntary intoxication.
Where a voluntarily intoxicated person holds a belief which, had he not been intoxicated, would have negatived his liability for an offence, the belief should not have that effect if he would not have held it but for his intoxication and the offence does not require proof of intention, purpose, knowledge, belief, fraud or dishonesty.
A person should be regarded as ‘intoxicated’ if his awareness, understanding or control is impaired by an intoxicant; and an ‘intoxicant’ should be defined as meaning alcohol, a drug or nay ther substance (of whatever nature) which, once taken into the body, has the capacity to impair awareness, understanding or control.
The extent to which our recommendations would change the law:
1.36. first, our recommendations would dispense with the need to classify the offence charged as one of ‘specific’ or ‘basic’ intent in order to determine which regime applies to it. In place of this distinction we propose a set of rules which, instead of applying to some offences but not to others, are so formulated as to be capable of applying in relation only to certain kinds of mental element.
1.37. secondly, it seems (though the position is not entirely clear) that the present law treats a mistaken belief brought about by the defendant’s voluntary intoxication in different ways according to whether it is categorised as negativing an element of the offence or as forming part of a defence…This rule is inconsistent with the law on mistakes which negative an element of an offence, and with the way in which the law treats defences created by statute. Our proposal will apply the same rules in all of these cases, and will make the law consistent and much simpler to apply.
Criminal Law Review
The Inculpatory Perspective
States that elect to do without Majewski can, of course, adopt a position diametrically opposed to that typified by O’Connor. This may be the approach in Scotland, which attaches rather less importance to subjective mens rea than England or other common law jurisdictions. Most Scottish criminal charges allege no mental element at all but refer only to the proscribed harm, and while mens rea terms like *731 wilfully, maliciously, recklessly, negligently and so on are implied by statute, [FN68] their interpretation often carries a markedly objectivist slant. English prosecutors might in particular cast envious glances towards the Scottish approach to “recklessness”, of which the Stair Memorial Encylopaedia notes that:
“It has … been held (and this is consistent with the philosophy of Scots criminal law) that there is no need for the accused actually to have foreseen the risk of the occurrence of such results by virtue of the way in which he was conducting himself; but the accused must be shown, from his conduct in the circumstances, to have been culpably indifferent to the consequences, or to have had a blameful disregard of the results, or a total indifference to and disregard for the safety of the public, or an utter disregard of what the consequences will be, or a culpable disregard of the consequences.” [FN69]
Where mens rea terms are understood from this broadly objectivist perspective, liability for drunkenly inadvertent harm doing will naturally require little departure from normal principles. Hence, Scots lawyers can often respond to questions about intoxication simply by citing Hume’s view that it is “no excuse”. [FN70]
If the Scottish common law on drunkenness is an inversion of the Australian, though, it may exhibit the converse problem of undue strictness. The problem is illustrated by the leading ruling of the High Court of Justiciary in Brennan [FN71] in which the defendant had consumed between 20 and 25 pints of beer and a microdot of LSD before stabbing his father to death. In refusing the appeal against a conviction of murder the court agreed with Lord Elwyn-Jones L.C.’s suggestion in Majewski that voluntary intoxication represents a reckless course of conduct. As Lord Emslie noted:
“Self-induced intoxication is itself a continuing element and therefore an integral part of any crime of violence, including murder, the other part being the evidence of the actings of the accused who uses force against his victim. Together they add up or may add up to that criminal recklessness which it is the purpose of the criminal law to restrain in the interests of all the citizens of this country.” [FN72]
It would have been surprising if the court had approached recklessness in any other way, but the question nevertheless remains whether the wicked recklessness required by murder should equally be satisfied by drunkenly inadvertent killing. It *732 is no use here to repeat Hume’s view that drunkenness is no excuse, [FN73] for drunkenness does not need to be an excuse [FN74] where it negates mens rea. That is the basis on which English drunkards have traditionally escaped liability for murder, and indeed two earlier Scottish cases–Campbell [FN75] and Kennedy [FN76]–had adopted precisely this approach by allowing intoxication as a defence where it negated capacity for intent to kill or do serious injury. Brennan overruled these decisions on the basis that they imported the alien English specific-basic distinction, [FN77] but a firmer ground for objecting to them is surely that they imported the alien English mens rea for murder. Doubtless Brennan’s restoration of a distinctively Scottish mens rea for that offence was long overdue, but nothing seems to follow as to the compatibility of such mens rea with extreme drunkenness. While we accept, in other words, that murder should be satisfied by “wicked recklessness”, it remains a matter for independent argument whether the character defects associated with “wicked recklessness” are adequately demonstrated by drunkenly inadvertent killers. No such independent argument is apparent in Brennan, and nor is it a foregone conclusion that the outcome of such an argument would accord with the High Court of Justiciary’s ruling. [FN78] Drunkenly inadvertent killers could, after all, comfortably be accommodated within the lesser offence of culpable homicide. [FN79]
If the flexible English approach to drunkenness has some appeal in the context of homicide, there are other areas where it may seem almost irresistible. Hence Gordon notes that:
“It is fairly plain that Brennan accepts that even voluntary intoxication can be a defence to a crime which requires a particular intention, such as theft, where it will be a defence to show that the accused was so drunk that the inference that he intended permanently to deprive the owner of his property cannot be drawn.” [FN80]
Gordon cites the old case of Kinnison [FN81] in which a drunken registrar had entered some mistaken records. The jury acquitted on a charge of wilfully making a false entry in a register, having been directed that the question was whether “when he made these errors he meant not to make a true entry, but meant to make a false entry.” [FN82] Could a modern Scottish court avoid taking a similar approach when faced with an offence, like theft or attempt, where intent seems to be of the essence? How could such an approach be understood, if not as at least the beginning of a distinction between “specific” and “basic” intents akin to that found in English law?
That policy was expressed by P. Healy (1990) 35 McGill LJ 610 at 612-613: ‘Sodden people who do bad things deserve punishment’. A similar point was made over a century ago by Stephen J: ‘It is almost trivial for me to observe that a man is not excused from crime by reason of his drunkenness. If it were so, you might as well shut up the criminal courts, because drink is the occasion of a large proportion of the crime which is committed’ (Doherty (1887) 16 Cox CC 306). The contrary view is that endorsed by the majority in Daviault v R: ‘The mental aspect of an offence, or mens rea, has long been recognised as an integral part of crime. The concept is fundamental to our criminal law…However, the substituted mens rea cannot establish the mens rea to commit the offence’ (per Cory J). the court rejected the Australian approach and retained the basic/specific intent distinction, but said that a person would be guilty of a basic intent offence if he had the minimum intent to do the prohibited act.
The butler Committee on Mentally abnormal Offences, Cmnd 6244, 1975, paras 18.51-18.59, suggested the creation of a new offence, being drunk and dangerous. The accused could be convicted of this offence if charged with a sexual assault, an offence against the person, and criminal damage endangering life. There are advantages in this proposal. The problem of distinguishing between basic and specific intent would disappear. Persons would not be totally acquitted as now happens when they are charged with a specific intent crime and there is no ‘fall-back’ basic intent offence. Moreover, if the mischief is truly one of intoxication, this proposed crime would focus on that mischief unlike present law. Three Lords in Majewski rejected this recommendation. One of its drawbacks is that it would be a status offence with little or no mens rea attached to it. Other proposals have included the creation of a crime of negligently causing injury, reforming offences so that there is always a ‘fall-back’ basic intent offence and treating drunken offenders outside the criminal law system. The present law is out of line with what judges thought was social policy in earlier years. In Reniger v Fogossa (1551) 75 ER 1 (KB), the court stated that drunkenness was no defence, and a drunken killer was sentenced to be hanged. This attitude seemed to be based on the thought that, since many crimes were committed when the accused was drunk, to provide a defence would mean that few wold be convicted. If intoxication was a defence to murder (as it is now), ‘there would be no safety for human life’ (Carroll (1835) 173 ER 64 (NP). There is some evidence for the view that in the seventeenth and eighteenth centuries drunkenness aggravated the crime, unlike nowadays where it mitigates the offence or provides exculpation.
Present reform proposals are largely based on the Criminal Law Revision Committee’s Fourteenth Report, Offences Against the Person, Cmnd 7844, 1980. the recommendations were:
a) the abolition of the basic/specific dichotomy and of the ‘constructive recklessness’ in Majewski.
b) Intoxication which did not totally exclude mens rea should not be a defence.
c) Involuntary drunkenness should remain a defence but only ‘if it negates the mental element’, and not if it loosens inhibitions.
d) Self-induced intoxication was to be defined, as the Butler Committee did, as ‘intoxication resulting from the intentional taking of drink or drugs knowing that it is capable in sufficient quantity of having an intoxicating effect, provided that intoxication is not voluntary if it results from a fact unknown to the accused that increases his sensibility to the drink or drug’.
e) The majority advocated that evidence of voluntary intoxication should be capable of negating the mental element in murder ( which at that time was wider than intent) and the intention required for the commission of other offences. In offences where recklessness was an element, if the accused did not appreciate a risk which he would have appreciated when sober, he would not have a defence. These recommendations would largely enact the common law. The minority would allow the defence where the accused was not aware of the risk of causing the actus reus, but would have been, were he sober. The dissentients comprised the two law professors on the Criminal Law Revision Committee.
f) There should be no offence of being dangerously intoxicated, as the Butler Committee had proposed. That crime would lump together the drunken child-killer and the inebriated brawler. The Committee’s majority thought that an offence in the area of intoxication should refer to the degree of harm so that, e.g., a drunken killer would still be convicted of manslaughter. The accused should not be labelled incorrectely. The majority opined that a drunken rapist should be guilty of rape, not of some general offence. The minority recommended a special verdict that the offence was committed while the defendant was intoxicated. He would be liable to the same potential penalty (except murder, where the penalty would be equivalent to manslaughter) as he would have been, had he been convicted. The sentence would reflect the harm. In this way the present ‘constructive recklessness’ rule would be abrogated.
The Law Commission’s 1989, 1993 and 1995 proposals:
Recommendations appeared in the draft Criminal Code, Law Com. No 177, 1989, which if enacted would remove some of the difficulties and anomalies of present law. The draft Criminal Code was based on 1980 recommendations of the Criminal Law Revision Committee. As stated in Chap 1 the draft Criminal Code would have enacted recent recommendations of law reform bodies without amendment. The main clause is cl 22(1), which would be the replacement for basic intent offences and applies to crimes in which part of the actus reus is recklessness. The whole of the actus reus need not be recklessness. In rape one part of the fault element is the intent to have sexual intercourse, but rape is an offence in which recklessness as to consent suffices.
The draft Criminal Code contains the following clauses.
Clause 22(1) where an offence requires a fault element of recklessness (however described), a person who was voluntarily intoxicated shall be treated-
a)as having been aware of any risk of which he would have been aware had he been sober;
b) as not having believed in the existence of an exempting circumstance (where the existence of such belief is in issue) if he would not have so believed had he been sober.
Clause 22(2) where an offence requires a fault element of failure to comply with a standard of care, or requires no fault, a person who was voluntarily intoxicated shall be treated as not having believed in the existence of an exempting circumstance (where the existence of such belief is in issue) if a reasonable sober person would not have so believed.
Clause 22(3) Where the definition of a fault element or of a defence refers, or requires reference, to the state of mind or conduct to be expected of a reasonable person, such persons shall be understood to be one who is not intoxicated.
Clause 22(4) Subsection (1) does not apply-
a) to murder (to which section 55 applies): or
b) to the case (to which section 36 applies) where a person’s unawareness or belief arises from a combination of mental disorder and voluntary intoxication.
Clause 55 A person is guilty of manslaughter if…
c) he is not guilty of murder by reason only of the fact that, because of voluntary intoxication, he is not aware that death may be caused or believes that an exempting circumstance exists;…
Clause 36 a mental disorder verdict shall be returned if –
a) the defendant is acquitted of an offence only because, be reason of evidence of mental disorder or a combination of mental disorder and intoxication, it is found that he acted or may have acted in a state of automatism, or without the fault required for the offence, or believing that an exempting circumstance existed;…
clause 56 (3) Where a person suffering from mental abnormality is also intoxicated, this section applies only where it would apply if he were not intoxicated. (Clause 56 concerns diminished responsibility).
Since most offences in the draft Criminal Code would be defined in terms of intention or recklessness, intoxication would rarely be a defence.
By cl 22 (5) (b) a ‘intoxicant’ covers ‘alcohol or any other thing which when taken into the body may impair awareness or control’. Therefore, dangerous drugs are included. By sub-cl (5) b a ‘voluntary intoxication’ covers taking something as an intoxicant (except properly for a medicinal purpose), knowing that it is or may be an intoxicant. By sub-cl 5 (c) a person is deemed to take an intoxicant if it is administered to him. By sub-cl (6) Bailey and hardie, above, would be enacted. The legal burden would remain on the prosecution, but the defendant would bear the evidential burden (sub-cl (7)). There would be no special provision for the ‘Dutch courage’ rule.
By these proposals the Law Commission sought to accomplish the abolition of specific and basic intent and the replacement of the present recklessness liability. The accused would be guilty of an offence which may be committed recklessly if he was intoxicated. Clause 22 restated current law. There was no need to have a special rule for crimes of specific intent because intoxication is simply part of the evidence. If crimes committable ‘maliciously’ survived the enactment of the Criminal Code, they would be treated as recklessness offences. By cl 33 (1) b) a person who is unconscious through drink does not have the defence of automatism.
Clause 22 (1) (b) would reverse Jaggard v Dickinson, above. The Law Commission commented (Report No. 177, para 8.41) that ‘that 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 perpetrate in the Code’. The Law Commission also wished to reverse the dictum in O’grady, above. The accused would be able to rely on a mistake brought about by intoxication in s