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Reforms - intoxication

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Law Commission Consultation Paper No.127 (1993) main criticisms:

Uncertainty regarding specific and basic intent

The division between basic and specific intent offences is illogical, unprincipled, and therefore uncertain.


Jury confusion

In some specific intent cases, the jury must be told to consider D's intoxication in deciding whether he had the specific intent.

Then if self-defence if it is raised to disregard it.


Foresight, Subjective –v-objective  recklessness

In cases involving subjective recklessness, the jury are asked to consider what D actually foresaw (not what a reasonable person would have foreseen) while disregarding his intoxication.


Furthermore, it is arguably unjust that liability should be based upon the foresight of a general risk (for example, some harm rather than specific harm) rather than foreseeing the specific risk of committing the particular offence in question.


The Majewski rule, and dangerous intoxication

The Commission's originally suggested that the Majewski rule should be abolished.

The presumption of recklessness implicit in the Majewski Rules for crimes of basic intent seems to conflict with the S8 Criminal Justice Act 1967 which requires that

"a defendant shall not be bound in law to infer that he intended or foresaw a result of his actions by reason only of its being a natural and probable consequence of those actions."

The proposal of an additional offence of "dangerous intoxication", has been opposed by many practitioners.


The Law Commission main proposals

Codification with minor amendments

The existing law should be codified with only minor amendments.


Where the prosecution alleges any intention or purpose, any knowledge or belief, or fraud or dishonesty

Evidence of intoxication should be taken into account in determining whether that allegation has been proved in these mens rea cases.


“Would have been aware if not intoxicated”

Where the prosecution alleges any mental element other than these, a defendant who was voluntarily intoxicated should be treated as having been aware of anything of which he would have been aware but for his intoxication.


Automatism resulting from voluntary intoxication, or a mistake of fact resulting from voluntary intoxication

Should be judged according to the “Would have been aware if not intoxicated” Rule; except;

A person who kills in a mistaken belief (resulting from voluntary intoxication) that circumstances exist that would reduce the offence from murder to manslaughter, should be guilty only of manslaughter.


Involuntary intoxication

Intoxication should be regarded as involuntary if D took the intoxicant

  • unaware that it might be an intoxicant, or

  • unaware that he was particularly susceptible to that intoxicant, or

  • unaware that it contained another substance that was the actual cause of D's intoxication, or

  • for medicinal purposes, either unaware of possible side-effects or following medical advice, or

  • under duress the onus being on D to adduce some evidence to this effect, after which the burden of proving the intoxication was voluntary should revert to the prosecution.

Other criticisms

The rule in Gallagher

There are good public policy reasons for adopting a pragmatic approach rather than following an approached based on pure legal principle approach (the "pragmatic approach" -v- the "principled approach").


The rule in R v Tandy

The rule in Tandy is thought to be somewhat artificial, since the "illness" could be treated if the defendant so desired.


If the defendant’s taking of her first drink of the day was not involuntary then the whole of her drinking on that day was not involuntary, since it clearly explained how great the craving for drink had to be before it could in itself produce an abnormality of mind.


Also, by separating the actus reus from the mens rea the defendant's first drink can be found constitute recklessness. 

This rule means that becoming intoxicated precedes the commission of the offence and is separate from it.


The distinction between "specific" and "basic" intent is artificial

Lord Mustill in R v Kingston (1995) HL  said he was not sure if a line could definitively be drawn between offences of "specific" and "basic" intent.

There is injustice and inconsistency that can occur if there is no lesser offence of basic intent upon which to “fall back” e.g. theft or inchoate offences. 


So, for example a defendant charged with theft can be acquitted if his intoxication prevented him forming the required mens rea and there is no lesser offence for which he can be convicted, unlike s18 OAP Act 1861 (GBH with intent) failure by the prosecution to prove the intent can means the defendant can still be convicted of sec20 GBH (without the intent).


R v Kingston (1995) HL

The effect of the decision in Kingston is to prevent a defendant using involuntary intoxication if the effect is merely to "disinhibit" him.

Involuntary intoxication is not a defence to a defendant who is proved to have the necessary criminal intent when he committed the offence even if under the influence of drugs administered secretly to the accused by a third party.


There was no defence of exculpatory excuse (a good excuse to get away with the act) known to the criminal law since the absence of moral fault on the part of the defendant was not sufficient in itself to negative the necessary mental element of the offence.

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