Lord Mustill said in Kingston1 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 by 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, English law has tried to achieve a compromise between principle and policy. The second part will examine the law of other jurisdictions on intoxication, in particular New Zealand, Australia and Germany. The final part of this essay will discuss the comparison of these jurisdictions in law on intoxication and find a legal solution for reconciling the conflicting demands of principle and policy in respect of offenders who are intoxicated.
2. ENGLISH LAW ON INTOXICATION:
2.1 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 intoxicated2 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 circumstances3, 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 condition4.
Therefore, I find this is a curious willingness to allow utility to override justice. The case of D.P.P v. Majewski5 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 contended6: 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 Salmon7 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 confusion8.
2.2 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 intent’9. 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 damage10, 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 depending on how the offence is characterised. If it is a specific intent crime, such as murder11, 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 rape12, 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 unclear13, but the existence of the distinction was affirmed by the House of Lords in Majewski14.
One explanation for the distinction is that specific intent offences are those offences requiring proof of intention15, which will not be proven because the defendant was intoxicated, whereas basic intent offences are those offences that can be committed recklessly16. 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 taken17. 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 intoxication18.
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 R v O’Grady19, 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 priority20. The O’Grady21 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 intoxication22.
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 involuntary23, 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 tremens24.
2.3 The attack on the English approach:
The public policy concerns in Majewskihave come in for criticisms. 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 offence25. In Majewski the House of Lords acknowledged the 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 grounds26, but it fails to accord with accepted principles of the criminal law.
However, it is not logical to compromise the requirement of mens rea on policy grounds27 in relation to recklessness for basic intent offences. Clearly, the idea that convictions are being secured for serious offences without the need to prove the requisite mens rea, is fictitious. This conflicts with the principle that the burden of proving mental elements is on the prosecution28. 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 time29.
The distinction between ‘specific intent’ and ‘basic intent’ is ill-defined, even if it does have some moral coherence30. The lack of an accepted rationale for the distinction makes it difficult to characterise new crimes as being either specific or basic intent offences31. 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. 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 accordingly32.
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 grey has contributed to difficulties here33. 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’34. 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 control35. 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 offender36, the difficulties raised here must be addressed, and orthodox theorists have found no satisfactory solution.
3. OTHER JURISDICTIONS:
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 on the jurisdictions in three countries, for example: Australia, New Zealand and Germany.
3.1 Australian and New Zealand Law:
There are several common law jurisdictions which allow intoxication to negative mens rea. In The Queen v. O’Connor37 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. 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 Majewski38. 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 involuntary39.
The High Court of Australia approved the judgment of the New Zealand Court of Appeal in Kamipeli 40 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 charge41. 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 Kamipeli42, and also the more particular question whether self-induced intoxication can ever support a defence to manslaughter43. Although, pending a review of the matter by the Court of Appeal, New Zealand courts apply the principles in Kamipeli44.
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, or might even have resulted in absence of intent to do the proscribed act45. However, the possibility of such acquittals is enhanced by the fact that in neither country has the courts regarded Caldwell46 as being of general application. An express or implicit requirement of recklessness is held to require actual awareness of the risk in question47, 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’Grady48, 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 intoxication49. 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.P50. 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 defences51, a conclusion supported by the New Zealand Court of Appeal in relation to duress52. 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 mistake53.
3.1.1 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 unusual54. This may in part be due to juries and judges being unwilling to give effect to what they regard as an unmeritorious principle55, 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 Kamipeli56 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 law57.
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 this58. 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 liability59. 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 intoxication60. 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 trip61.
3.2 German Law:
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 that62:
“(1) whoever intentionally or negligently becomes intoxicated through the use of alcohol or other intoxicating substances are 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 considered liable under Article 330a, if someone assaults him while he is drunk and he responds in self-defence, as his act is not wrongful63. 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 liability63.
4. FINDING A LEGAL SOLUTION:
It appears that none of the discussed jurisdictions approaches on their own is satisfactory in their method on the law of intoxication.
The English approach was established by the House of Lords decision in Majewski as I have already discussed above. In short, there are mainly three recognised reasons not to support the Majewski approach64. First, conflicting views as to the exact implications of Majewski, and in particular the lack of any satisfactory criteria for drawing the crucial distinction between crimes of basic and of specific intent, meant that the law was complicated and difficult to explain.
Secondly, the Majewski principle operates through technical rules of law which have been developed piecemeal by the courts. As a result, the policy which lies behind the rules, namely the protection of the public from those who commit violent or harmful acts when intoxicated, is being implemented in an erratic and unprincipled manner. This is particularly apparent in the way the rules are applied to defences based on a mistaken belief65.
Thirdly, the Majewski approach gives rise to practical difficulties, because it is not clear whether evidence of the defendant’s intoxication can be treated as equivalent to the mental state required for the offence, or whether the jury should ignore only the fact of the defendant’s intoxication and consider whether he would have had the necessary awareness had he not been intoxicated66.
Following various decisions in New Zealand and in the non-Code states of Australia, intoxication would merely be part of the evidence of mens rea, which is not satisfactory either. Because it relies on juries to make covert moral assessments and not simply the factual assessment that the law requires- even if they usually produce socially acceptable outcomes67. Furthermore, the antipodean approach yields the anti-social maxim ‘more intoxication, less liability’, and public outcries at certain acquittals have led some Australian states to abandon the simple ‘logical’ approach. It gives no weight to the elements of choice and risk involved in getting drunk. Usually the choice is to loosen one’s self-restraint rather than to commit a crime, let alone a particular kind of crime; but the retention of control over one’s behaviour might fairly be regarded as a social duty, and its abandonment as a form of wrongdoing68.
The German compromise solution has also failed to take on board several crucial issues. This arrangement mainly 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 victim69. Other criticisms include the fact that the proposed offence is confined to crimes against the person and that the penalties attached to it are relatively stiff. 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.
Therefore, the best solution in my opinion on the law of intoxication is to combine Australian and German approach into one set of rules for this area of the law. It might be achievable by abolishing Majewski but replacing it with a new offence of criminal intoxication, though, this proposal is very recently rejected by the Law Commission70. This approach in one hand will allow the jury to take into account the evidence of intoxication, together with the other circumstances, in deciding whether the defendant acted with the requisite mental element, whether intention or recklessness; in deciding whether the defendant held a belief which, if true, would negative liability for the offence; and in deciding whether he was in a state of automatism71.
On the other hand, this approach considers much the same policy as have been used to justify Majewski by creating a new offence. First, it is said that it is needed in the interests of social protection. Secondly, although the idea that absence of awareness resulting from voluntary intoxication is as wrongful a state of mind as subjective recklessness72 is not supported, it is argued that a person who deliberately becomes substantially intoxicated is guilty of a degree of fault which is sufficient to justify criminal liability, and is even such that it may be morally wrong for there to be no criminal liability for harm committed while in that state. These propositions may be disputed.
However, the crime would be committed by an accused who, while substantially intoxicated, caused the harm proscribed by a so-called ‘listed’ offence73. It would not be relevant that the accused did not have the mental element of the listed offence or that he was in a state of automatism. The new offence would have applied only if the accused did not form the mens rea of an offence. As regards punishment74, the Law Commission stresses that, as a matter of principle, the maximum sentence for this new offence should be related to the harm caused, but it should be less than that for the listed offence on which liability is founded. Consequently, the Law Commission tentatively recommends that the maximum sentence should be two-thirds of that for the underlying offence, with a maximum of 10 years’ imprisonment if the maximum for the listed offence is life imprisonment.
On the other hand, the new offence would also create problems75. The new offence would add to the already considerable number of matters which a jury often has to consider when deciding whether the offences charged have been proved, that the new offence would make the jury’s task even more difficult than it is at present in some case. It seems that if the new offence is created, there would be many more trials in which defendants would raise the issue of drunkenness. Many defendants might seek to plead to the special offence rather than the offence charged, either because they might prefer to be convicted of the special offence rather than the offence charged (as for example rape), or because the special offence might tend to be regarded as a less serious offence. Therefore, it seems artificial and undesirable to have a special offence for which conviction is automatic but which carries the same maximum penalty as the offence for which a defendant would have been convicted but for the lack of proof of the required mental element due to intoxication. It is also important to consider the public reaction to the creation of a new offence whether they would be confused by this.
It is clear that none of these jurisdictions approaches on their own provides the satisfactory solution for the practical operation of the law on intoxication, as I have outlined in this paper. Therefore, I would strongly recommend the radical proposal, which was made by the Law Commission in 1993, of abolishing Majewski and replacing it with a new offence. It appears that the new offence could straightforwardly implement the policy of restraining intoxicated defendants, would concentrate on the damage or injury caused by them, and would abolish the complicated yet uncertain law found in Majewski. In such circumstances, I would conclude that the radical proposal should be welcomed as the ideal solution for reconciling the conflicting demands of principle and policy in respect of offenders who are intoxicated. So, the case for Parliamentary reform of this area of law is compelling.
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1 (1994) 3 W.L.R. 519.
2 Whether by alcohol, as in Majewski (1977) A.C. 443, or drugs, as in Lipman (1970) 1 Q.B. 152.
3 For reasons of preserving public order. See Majewski (1977) A.C. 443, 469 (Lord Elwyn-Jones L.C.), 476 (Lord Simon of Glaisdale).
4 Lord Elwyn-Jones L.C. in Majewski, at p. 474.
5 Majewski (1977) A.C. 443.
6 Orchard, ‘Surviving without Majewski-A View from Down Under’, Criminal Law Review 426.
7 See, Smith and Hogan, Criminal Law Cases and Materials, p-324.
8 I will discuss later on this matter, suggesting options for reform of the law. This will be critically analysed to determine whether there is a need for reform and, if so, what the most appropriate solution might be.
9 Doherty (1887) 16 Cox C.C. 306, 308; Sheehan (1975)1 W.L.R. 739, 744.
10 Caldwell (1982) A.C. 341.
11 D.P.P. v. Beard (1920) A.C. 479.
12 Fotheringham (1989)88 Cr.App.R. 206.
13 See, Smith and Hogan, Criminal Law, state that the distinction is based on no principle but on policy, p.221.
14 (1977) A.C. 443.
15 This was accepted by Lord Diplockin Caldwell (1982) A.C. 341, 356.
16 Such a rationalisation does not explain why rape is a basic intent offence, because this requires sexual intercourse to be intended. A more sophisticated approach is therefore to regard certain offences as consisting of both specific and basic intent elements. Thus, for rape, the element of intention to have sex may be regarded as one of specific intent and, if it is in issue, then intoxication may be relied on to deny its existence; though, of course, extreme intoxication is likely to make the offence physically impossible. Recklessness in respect of lack of consent may be regarded as a basic intent element and, if this is in issue, intoxication cannot be relied on to deny recklessness.
17 Lord Elwyn-Jones in Majewski, at p.474 said that the defendant’s course of conduct in reducing himself by drugs and drink to that condition in my view supplies the evidence of mens rea, of guilty mind certainly sufficient for crimes of basic intent.
18 Bailey (1983)1 W.L.R. 760(insulin); Hardie (1985) 1 W.L.R. 64(valium).
19 (1987) 85 Cr.App.R. 315
20 The same view was taken in the rape case of Fotheringham, where the Court declared roundly that ‘in rape self-induced intoxication is no defence, whether the issue be intention, consent or, as here, mistake as to the identity of the victim’. However, it does lead to the extraordinary result in crimes of specific intent that intoxication may negative mens rea whereas an intoxicated mistake must be discounted.
21 (1987) 85 Cr.App.R. 315
22 Jaggard v. Dickinson (1981)Q.B. 527, concerning the Criminal Damage Act 1971, s.5(2)(a).
23 Pearson (1835) 2 Lewin 144.
24 D.P.P. v. Beard (1920) A.C. 479, 501.
25 For example, a defendant charged with murder can be convicted of manslaughter.
26 More extensive reform would require legislative intervention, as was acknowledged by some of their Lordshipsin Majewski, e.g. Lord Elwyn-Jones and Lord Edmund-Daviesat.
27 Lord Salmon accepted that there is a degree of illogicality in the rule that intoxication may excuse or expunge one type of intention and not another.
28 Woolmington v. D.P.P. (1935) A.C. 462.
29 Though this principle is by no means absolute. See Ashworth, Principles of Criminal Law, p.133
30 A number of different rationales for the distinction were identified in Majewski, including that basic intent crimes are those that may be committed recklessly (Lord Elwyn-Jones ) or that specific intent offences are those which require proof of purpose (Lord Simon of Glaisdale). Neither of these are satisfactory explanations of the distinction.
31 Law Commission Consultation Paper No. 127 (1993), Intoxication and Criminal Liability.
32 Law Commission, para. 4.18. See Robinson ‘Causing the Conditions of One’s Own Defense: A Study in the Limits of Theory in Criminal Law Doctrine’ (1985) 71 Virginia L.R.
33 See, Herbert Fingarette and Ann Hasse, Mental Disabilities and Criminial Responsibility, p-142.
34See, Wheeler v. Goodman, 306 F. Supp. 58 (1969). The vagueness doctrine is said to be the ‘most obvious federal constitutional attack’ on status crimes. Anthony Amsterdam, ‘Federal Constitutional Restrictions on the Punishment of Crimes of Status, Crimes of General Obnoxiousness, Crimes of Displeasing Police Officers, and the Like,’ Criminal Law Bulletin 3 (1967): 205, 216.
35 Anthony Cuomo, ‘Mens Rea and Status Criminality’, Southern California Law Review 40 (1967): 463, 507.
36 See, Dine, J & Jamess, Cases & Materials On Criminal Law, p-189.
37 (1981)146 C.L.R. 64.
38 See Kusu (1981) Qd. R. 136; Palmer (1988) Tas. R. 138; Bennett (1990) Tas. R.72.
39 Martin (1984) 51 A.L.R. 540.
40 (1975)2 N.Z.L.R. 610.
41 Martin (1984) 51 A.L.R. 540.
42 See, Roulston  2 N.Z.L.R. 644, 653-4.
43 Grice (1975) 1 N.Z.L.R. 760, 766-7.
44 See e.g. Steinberg v. Police (1983) 1 C.R.N.Z. 129(assault on traffic officer in execution of duty); Burnskey v. Police (1992)8 C.R.N.Z. 582 (indecent assault).
45 Burnskey v. Police (1992)8 C.R.N.Z. 582; but it is doubtful whether the evidence for such a defence was sufficient in this case: E. McDonald  N.Z.L.J. 44.
46 (1982) A.C. 341.
47 Tziavrangos v. Hayes (1991)53 A. Crim. R. 220 (S.A.)
48 (1987) Q.B. 995.
49 Thomas (1991)3 N.Z.L.R. 141 (C.A.).
50 1987)162 C.L.R. 645.
51 Yeo, Compulsion in the Criminal Law, pp. 228-9.
52 Kapi v. MOT (1991)8 C.R.N.Z. 49 (C.A.).
53 McCullough (1982)6 A. Crim. R. 274 (Tas. CCA)
54 Law Comm., n.2, paras. 5.15-5.22.
55 Ashworth, Principles of Criminal Law, pp. 189-190.
56 (1975)2 N.Z.L.R. 610, 619; and see O’Connor (1980)146 C.L.R. 64, 79, 88, per Barwick C.J.
57 See, New Zealand the Report of the Crimes Consultative Committee (1991), pp. 19-20, again found no need for change; for the background to this, see S. France, ‘Reforming Criminal Law–New Zealand’s 1989 Code, (1990) Crim.L.R.827.
58 Ashworth, op.cit., p.190.
59 Compare O’Connor (1980) 146 C.L.R. 64, 74, per Barwick C.J., 101, per Stephen J.
60 Although the Law Commission’s suggested offence does not require such causation: Law Comm., op.cit. n. 2, para. 6.67-6.69.
61 Serious doubts about moral culpability might also be raised by the facts of the recent New Zealand case of Thomas. At 4.00 a.m. in the morning, after having been “drinking to excess” with friends in a house, noise drew the defendant’s attention to forceful efforts by police to effect an arrest. The defendant investigated and intervened in the mistaken belief that the police were using excessive force, a belief which under New Zealand law negated the mens rea needed for the charge of obstructing a police officer in the execution of duty, and also supported the justification of lawful defence of another. In upholding both defences the Court of Appeal did not find it necessary to discuss the fact that the defendant’s honest and mistaken belief was accompanied by, and very probably caused by, intoxication, and nor was it thought necessary to investigate the reasonableness or otherwise of the mistake.
62 See, Fletcher, Rethinking Criminal Law, pp.847-848.
63 See, Clarkson CMV & HM Keating, Criminal Law Text and Materials, p-430.
63 Andrew Ashworth, “Intoxication and General Defences” (1980) Crim. L .R. 556 at 558-560.
64 Law Commission Report No. 229, Legislating the Criminal Code, Intoxication and Criminal Liability (1995), paras 5.4 -5.6:
65 See, McAuley, F and J. Paul McCutcheon, Criminal Liability, p-579.
66 See, Allen, M, J, Elliott and Wood’s Cases and Materials on Criminal Law, p-253.
67 The Irish Law Reform Commission in it Report on Intoxication commented thus: ‘the traditional mens rea doctrine is an appropriate one for the sane and sober criminal, but to adhere to it in an unbending and inflexible fashion enables the offender himself, voluntarily, not just to ‘move the goalposts’ but to remove them altogether!.
68 See, Clarkson, Criminal Law Text and Materials, p-431.
69 See, Fletcher, Rethinking Criminal Law, p-847.
70 The Law Commission has been extremely active in this area of the law in the 1990s and has considered the role of intoxication in the criminal law on no less than three occasions. In 1993 it published its Consultation Paper No 127 on ‘Intoxication and Criminal Liability’ and later in the same year its report on ‘Offences Against the Person and General Defences’ makes reference to the effect of intoxication. In 1995 its Report No 229 on ‘Legislating the Criminal Code: Intoxication and Criminal Liability’, was published.
71 Law Commission, para. 6.30. Adoption of this proposal would require the consequential repeal of s.6(5) and (6) of the Public Order Act 1986.
72 Majewski (1977)A.C. 443, 479, Per Lord Simon.
73 A ‘listed’ offence is just that: one listed by the Law Commission. These were expressed as : homicide, bodily harm, criminal damage, rape, indecent assault, buggery, assaulting or obstructing a constable in the execution of his duty, violent disorder, affray, putting a person in fear of or provoking violence, and causing danger to road users. The offence would, therefore, not apply to other offences such as attempts, battery , theft and burglary.
74 The proposed punishment for the new offence operates as a mandatory mitigation of the maximum sentence for the listed offence on which liability is based. This must be right, because there is less culpability in causing harm when intoxicated than when sober. The difficulty arises in determining the formula for mitigating sentence. The proposed two-thirds of the maximum sentence for the listed offence is arbitrary, but arguably broadly accords with the culpability for harm caused whilst intoxicated. Certainly the sentence should be more severe if the defendant had previously caused any of the listed harms whilst intoxicated, even if he had not been convicted for causing such harm. Consideration particularly needs to be given to sentencing policy in cases where the defendant is addicted to the intoxicant.
75 Intoxication and Criminal Liability (1993) Law Commission Consultation Paper No 127.