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General defences - intoxication

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  • Intoxication can be voluntary or involuntary. 

  • It also plays a part in the defence of automatism.

  • Intoxication can be induced by alcohol or drugs.

Not a defence, more a denial of mens rea

A defendant can only benefit from a defence based on voluntary or involuntary intoxication if the court is convinced that because of being intoxicated the defendant lacked the required mens rea, R v Kingston [1994] HL.

Policy issue


If a defendant could simply claim intoxication as a defence, and be completely exonerated every crook would have a drink before a crime spree, and then, when arrested claim intoxication and be automatically acquitted.

The leading case on intoxication is DPP v Majewski  (1977) HL

In Majewski it was contended that if intoxication affected the mind of the defendant it was illogical and unethical to distinguish between its effect on one state of mind and on another.


It was argued that there is no permissible distinction between offences of basic intent and those of specific intent.


The Crown contended that that distinction had nevertheless represented the law of England for many years. The House upheld the Crown's contention. It did so in the full knowledge that it was not perfectly logical. It so held, in large measure, on grounds of policy.


As was observed by several of their Lordships, historically the law of England regarded voluntary intoxication as an aggravation rather than a potential excuse and the development of the law had been by way of a partial, but only a partial, relaxation of that common law rule where a specific intent was required.


Dutch Courage Rule

Where D fortifies himself with alcohol to gain the courage to commit a crime this is known as Dutch Courage and is no defence.


Only for crimes of specific intent

Intoxication can only be used to negative mens rea in crimes of specific intent.


Courts have applied the distinction between specific and basic intent inconsistently.


What is specific intent?

A crime that requires the defendant to intend some unlawful consequence specifically identified in the offence e.g. Sec 18 OAP 1861.  Wounding or grievous bodily harm with intent to cause grievous bodily harm, or resist arrest.


What is basic intent?


Intoxication no defence to crimes of strict liability


For most purposes, it means all other assaults and criminal damage.


(Incidentally, intoxication is not defence to drink driving because that is a crime of strict liability).


Any crime that contains ‘recklessness’ in the offence will be basic intent crime (Lord Edmund-Davies in Caldwell)



  • Drinking may genuinely reduce inhibitions and may cause a defendant to act differently from the way he would but for his state of intoxication.   

  • By pleading intoxication, it can make an otherwise valid defence of mistake or failure to foresee an obvious risk or automatism more difficult to argue in practice.  

  • It is immaterial that the accused may have misjudged how drunk or drugged be would become. 

  • (The rules we are discussing do not apply where a defendant takes drink or drugs under medical supervision or direction) 

  • A person who thought he was drinking orange juice but which another had spiked with quantities of vodka would be involuntarily intoxicated.

  • He would be able to plead lack of mens rea because he was drunk and so incapable of forming the necessary intent.

Problems categorising offences as basic or specific intent

It should not be supposed that every offence can be categorised simply as either one of specific intent or of basic intent.


So to categorise an offence may conceal the truth that different elements of it may require proof of different states of mind.


In the law of rape, as it stood immediately before the passing of the Sexual Offences Act 2003, rape was sexual intercourse with a woman who did not in fact consent, by a man who either knew she did not or was reckless as to whether she did. No-one doubted that the act of intercourse could only be committed intentionally.


But when it came to the defendant's state of mind as to the woman's lack of consent, either knowledge or recklessness sufficed for guilt: section 1 Sexual Offences (Amendment) Act 1976.


Many other examples of the point could be cited. The current legislative practice of itemising separately different elements of offences created by statute, which is much exhibited in the Sexual Offences Act 2003.


Involuntary intoxication

Distinction between strict and basic intent disappears

The advantage to a defendant arguing involuntary intoxication is that it avoids the restrictive rules of 'specific' and 'basic' crimes in voluntary intoxication.

He still has to prove he did not have the necessary intent.


Voluntary intoxication by taking drugs

The courts complicated the rules on intoxication by distinguishing between ‘dangerous drugs’ and 'non dangerous drugs' in R v Bailey [1983] CA

R v Hardie [1985] CA the court considered an accused, charged with an offence of Criminal Damage Act 1971.  He had taken a number of Valium tablets (which were prescribed for someone else).

Held: that this did not necessarily amount to voluntary intoxication.

"[Valium is] wholly different in kind from drugs which are liable to cause unpredictability or aggressiveness . . . . if the effect of a drug is merely soporific or sedative the taking of it, even in some excessive quantity, cannot in the ordinary way raise a conclusive presumption against the admission of proof of intoxication for the purpose of disproving mens rea." . . .[The jury] should have been directed that if they came to the conclusion that, as a result of the Valium, the appellant was, at the time, unable to appreciate the risks to property and persons from his actions they should then consider whether the taking of the Valium was itself reckless."


Non-dangerous drugs

Valium is an example of 'non-dangerous drug'.


Dangerous drugs

'Dangerous' drugs include those where it is ‘common knowledge’ that the taker ‘may become aggressive or do dangerous or unpredictable things’ or make D incapable of appreciating risks (amphetamines and LSD being well known examples).

In these cases there may be recklessness in self-administering it which would be the case when the drug was well known for causing the effects. In these cases the jury can consider the taking of the drug itself to be reckless, R v Hardie [1985] CA and R v Bailey [1983] CA.

If they find against the defendant on this issue, then, pursuant to R v G (2003) HL, they will still have to go on to decide whether the defendant would have aware of the relevant risk had he not taken the drug.


Knowingly taking a ‘dangerous’ drug

Counts as voluntary intoxication.

When the mens rea in issue is recklessness and the defendant was intoxication (self-induced) and he says he was unaware of a risk, but he would have been aware of the risk if he were sober, he is to be treated as if he had been aware of that risk.

R v Sheehan and Moore CA

"In cases where drunkenness and its possible effect upon the defendant's mens rea is in issue, ... the proper direction to a jury is, first, to warn them that the mere fact that the defendant's mind was affected by drink so that he acted in a way in which he would not have done had he been sober does not assist him at all, provided that the necessary intention was there.


"A drunken intent is nevertheless an intent. Secondly, and subject to this, the jury should merely be instructed to have regard to all the evidence, including that relating to drink, to draw such inferences as they think proper from the evidence, and on that basis to ask themselves whether they feel sure that at the material time the defendant had the requisite intent"

Taking a ‘non-dangerous’ drug

Is governed by a similar rule to self-induced automatism. It depends on the actual knowledge of the offender as to the likely effects of the drug.



We now await further clarification of drugs into dangerous and non-dangerous.


 Automatism caused by intoxication

The law imposes serious restrictions on the defence of automatism.

Voluntary intoxication which causes automatism

A self-induced incapacity will not provide a defence of automatism.

Foreseeable automatism

Nor will a defence of automatism succeed which could have been reasonably foreseen. 

For example, taking alcohol against medical advice after using certain prescribed drugs, or failing to have regular meals while taking insulin.


R v Bailey [1983] CA

A defence based on automatism caused by hypoglycaemia failed (the same argument could have been used for the effects of alcohol).


"In our judgment, self-induced automatism, other than that due to intoxication from alcohol or drugs, may provide a defence to crimes of basic intent. The question in each case will be whether the prosecution has provided the necessary element of recklessness. In cases of assault, if the accused knows that his actions or inaction are likely to make him aggressive, unpredictable or uncontrolled with the result that he may cause some injury to others and he persists in the action or takes no remedial action when he knows it is required, it will be open to the jury to find that he was reckless."


Automatism caused by alcohol when D is at fault, no defence


The authorities seem to be clear that automatism due to voluntary intoxication is not available to the defence if the accused was at fault.


Furthermore, it is not available at all to an offence of specific intent.



(Think of Sec 18 OPA 1861 (intent to cause grievous bodily harm).   The accused would have to intend to become violent through failure to take food for the court to deprive him of the defence of automatism, cf. the Dutch Courage Rule.)


Other crimes of specific intent

Offences of specific intent include murder, wounding with intent, theft, handling stolen goods, indecent assault where an indecent purpose must be proved, and all attempts.


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