The law on intoxication cannot escape being a pragmatic compromise between the competing demands of social defense against drunken violence and the logic of men’s requirements – Discuss.
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 the law of other jurisdictions on intoxication, in particular both New Zealand and Australia and Germany. The final part of this essay discusses the comparison of these jurisdictions in law on intoxication and finding a legal solution for reconciling the conflicting demands of principle and policy in respect of offenders who are intoxicated. All these issues are very much interrelated and they have lots of dependence as well. Discuss between these two things is huge and lots of reference we have in our hand also.
1. Part A: ENGLISH LAW ON INTOXICATION:
(a)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 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. Arguably there is culpability in the act of getting intoxicated and causing harm in such a condition.
Therefore, I find this is 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.
(b)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’. 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 in depending on how the offence is characterised. If it is a specific intent crime, such as murder 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 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 but the existence of the distinction was affirmed by the House of Lords in Majewski.
One explanation of the distinction is that specific intent offences are those offences requiring proof of intention, which will not be proven because the defendant was intoxicated, whereas basic intent offences are those offences that can be committed recklessly. 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. 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.
(c)Intoxication rather than automatism
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’Grady 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. 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 intoxication.
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 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.
Part B: THE ATTACK ON THE ENGLISH APPROACH:
(a)Specific intent offences:
The public policy concerns in Majewski have 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 offence. 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 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 of convictions is 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 time.
(b)the policy objectives:
The distinction between ‘specific intent’ and ‘basic intent’ is ill-defined, even if it does have some moral coherence. The lack of an accepted rationale for the distinction makes it difficult to characterise new crimes as being either specific or basic intent offences. It is also uncertain whether it is the offence itself that is characterized as one of specific or basic intent, or whether each mental element of the offence should be so characterized. 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.
(c)Voluntarily intoxicated offender
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 offender36, the difficulties raised here must be addressed, and orthodox theorists have found no satisfactory solution.
PartC:SOCIAL PROTECTION AND MORAL CULPABILITY:
(a)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. This may in part be due to juries and judges being unwilling to give effect to what they regard as an unmeritorious principle, 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 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 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.
(c)FINDING A LEGAL SOLUTION:
It appears that none of the discussed jurisdictions approaches on its own is satisfactory in their method on the law of intoxication.The English approach had 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 approach 6. 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 belief.
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 intoxicated.
Following various decisions in New Zealand [FN39] and in the non-Code states of Australia[FN38] , intoxication would merely be part of the evidence of mens rea 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 outcomes 7. Furthermore, the antipodean approach seems to yield 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 wrongdoing.
It is clear that none of these jurisdictions approaches on its own provides the satisfactory solution for the practical operation of the law on intoxication, as I have explained details in this essay. 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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14. Criminal Law Revision Committee, 14th Report, Offences Against the Person, Cmnd. 7844 (1980).
15. Dashwood: ‘Logic and the Lords in Majewski’ (1977) Crim. L.R 532.
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20. –(2000), ‘Surviving Without Majewski’ Crim. L.R. 719.
21. Gustafson and Kallinen, ‘Changes in the Psychological Defence System as a Function of Alcohol Intoxication in Men’ (1989) 84. B.J. Addict. 1515.
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26. Horder, J. (1995c), ‘Sobering Up? The Law Commission on Criminal Intoxication’, Modern Law Review 58:534.
27. –‘Pleading Involuntary Lack of Capacity’ (1993) 52 C.L.J 298.
28. Home Office: Violence: Reforming the Offences against the Person Act 1861 (1998).
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30. Intoxication and Criminal Liability (1993) Law Commission Consultation Paper No 127.
31. Jefferson, M, (2003), Criminal Law, 6th edn, Pearson Education.
32. James Chalmers, (2001), Surviving Without Majewski’ Crim.L.R. 258.
33. John E. Hodge, ‘Alcohol and Violence’ in Pamela J. Taylor (ed.), violence in Society (1993).
34. Law Commission Report No. 229, Legislating the Criminal Code: Intoxication and Criminal Liability (1995).
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36. McAuley, F and J. Paul McCutcheon, (2000), Criminal Liability, 1st edn, Round Hall Sweet & Maxwell.
37. Mitchell, B. (1999), ‘In Defence of the Correspondence Principle’, Criminal Law Review 195.
38. Mitchell, C. (1988), ‘The Intoxicated Offender-Refuting the Legal and Medical Myths’, International Journal of Law and Psychology 11: 17.
39. Orchard, G. (1993), ‘Surviving without Majewski-A View from Down Under’, Criminal Law Review 426.
40. Paton ‘Re-formulating the Intoxication Rules: The Law Commission Report’ (1995) Crim L. R. 382.
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42. Report of the Committee on Mentally Abnormal Offenders (Butler Committee) Cmnd. 6244 (1975).
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44. Saunders, K. (1988), ‘Voluntary Acts and the Criminal Law: Justifying Culpability Based on the Existence of Volition’, University of Pittsburgh Law Review 49: 443.
45. Sellers: ‘Mens Rea and the Judicial Approach to Bad Excuses’ (1978) 41 M.L.R. 245.
46. Smith and Clements, ‘Involuntary Intoxication, the Threshold of Inhibition and the Instigation of Crime’ (1995) 46 N.I.L.Q. 210.
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51. Smith, J.C. (1987), ‘Intoxication and the Mental Element in Crime’ in P. Wallington and R. Merkin (eds), Essays in Honour of F. H. Lawson (London: Butterworths).
52. Smith (1998) ‘Offences against the Person: The Home Office Consultation Paper’ Criminal Law Review 317.
53. Sullivan, G.R ‘Intoxicants and Diminished Responsibility’ (1994), Crim. L.R. 156.
54. –(1994), ‘Involuntary Intoxication and Beyond’,Crim. L. R. 272.
55. –‘Making Excuses’ in Simester and Sullivan (eds), Harm and Culpability (1996).
56. Wilson, ‘Involuntary Intoxication: Excusing the Inexcusable’ (1995) 1 Res Publica 25.
57.(1994) 3 W.L.R. 519.
58.Whether by alcohol, as in Majewski (1977) A.C. 443, or drugs, as in Lipman (1970) 1 Q.B. 152.
59.For reasons of preserving public order. See Majewski (1977) A.C. 443, 469 (Lord Elwyn-Jones L.C.), 60.(Lord Simon of Glaisdale).
61.Lord Elwyn-Jones L.C. in Majewski, at p. 474.
62.Majewski (1977) A.C. 443.
63. Orchard, ‘Surviving without Majewski-A View from Down Under’, Criminal Law Review 426.
64 .See, Smith and Hogan, Criminal Law Cases and Materials, p-324.
65.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.
66. Doherty (1887) 16 Cox C.C. 306, 308; Sheehan (1975)1 W.L.R. 739, 744.
67. Caldwell (1982) A.C. 341.
68. D.P.P. v. Beard (1920) A.C. 479.
69.Fotheringham (1989)88 Cr.App.R. 206.
70. See, Smith and Hogan, Criminal Law, state that the distinction is based on no principle but on policy, p.221.
71.(1977) A.C. 443.
72.This was accepted by Lord Diplockin Caldwell (1982) A.C. 341, 356.
73. 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.
.see, Allen, M, J, (2003), Text Book on Criminal Law, 7th edn, Oxford University Press.
 .see, –2001), Elliott and Wood’s Cases and Materials on Criminal Law, 8th edn, Sweet & Maxwell.
 .see, —(2001), Criminal Law, 8th edn, Sweet & Maxwell.
 See, Ashworth, A, (2003), Principles of Criminal Law, 4th edn, Oxford University Press.
 See, —(2000b), Sentencing and Criminal Justice (3rd edn., London: Butterworths).
See, Barlow, N, (1984), ‘Drug Intoxication and the Principle of Capacitas Rationalis’, Law Quarterly Review 100: 639.
 See, 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.
 See, Doherty (1887) 16 Cox C.C. 306, 308; Sheehan (1975)1 W.L.R. 739, 744.
 See, Caldwell (1982) A.C. 341.
 See, D.P.P. v. Beard (1920) A.C. 479.
 See, Fotheringham (1989)88 Cr.App.R. 206.
 See, Smith and Hogan, Criminal Law, state that the distinction is based on no principle but on policy, p.221
 (1977) A.C. 443.
 This was accepted by Lord Diplockin Caldwell (1982) A.C. 341, 356.
 See, 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.
 (1987) 85 Cr.App.R. 315
 See, Jaggard v. Dickinson (1981)Q.B. 527, concerning the Criminal Damage Act 1971, s.5(2)(a
 See, 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.
 Bailey (1983)1 W.L.R. 760(insulin); Hardie (1985) 1 W.L.R. 64(valium).
 (1987) 85 Cr.App.R. 315
 See, 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.
 (1987) 85 Cr.App.R. 315
 See, Jaggard v. Dickinson (1981)Q.B. 527, concerning the Criminal Damage Act 1971, s.5(2)(a
 See, Pearson (1835) 2 Lewin 144.
 See, D.P.P. v. Beard (1920) A.C. 479, 501.
 See, For example, a defendant charged with murder can be convicted of manslaughter.
 SEE, 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.
 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.
 Woolmington v. D.P.P. (1935) A.C. 462.
 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.
 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.
 See, Herbert Fingarette and Ann Hasse, Mental Disabilities and Criminial Responsibility, p-142.
 See, 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.
 Anthony Cuomo, ‘Mens Rea and Status Criminality’, Southern California Law Review 40 (1967): 463, 507.
 Law Comm., n.2, paras. 5.15-5.22.
 Ashworth, Principles of Criminal Law, pp. 189-190.
 (1975)2 N.Z.L.R. 610, 619; and see O’Connor (1980)146 C.L.R. 64, 79, 88, per Barwick C.J.
 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.