Crime CXXXVI– Intoxication XII

With regards to specific intent crimes for example murder, self-intoxication is a defense or more rightly a mitigating factor, but one the court will allow only sparingly i.e. the court, or the jury will look into all the evidence that is available to them as per s.8 of the Criminal Justice Act (1967) and decide if the defense should be made available to the defendant or if the court will accept the defendant’s plea and the reluctance of the court is primarily because of public interest or public policy reasons in that an innocent member of the public should be protected from the drunken mistake of another especially given the fact that the defendant got drunk on his own accord.

It might be different if the defendant had been forced to drink or someone had pointed a gun to the defendant’s head and made him drink or if his drink was spiked but unless that was the case, the courts will show some reluctance in allowing the defense.

In R v Stubbs (1989) the defendant who was drunk at the time got into a fight with the victim, and stabbed the victim, causing grievous bodily harm, and was charged under s.18 of the Offences Against Person Act (1861). The mens rea to obtain a s18 conviction is intention to cause grievous bodily harm but because the defendant at the time lacked the mens rea or the intention to cause grievous bodily harm, the court accepted a section 20 plea (which is a lesser offence) the mens rea for which is either intention or recklessness.

The lack of the required mens rea caused by drunkenness would be a defense to a section 18 charge, but it has to be extreme, i.e. the defendant was so intoxicated that he had lost all ability to reason.

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Crime CXXXV– Intoxication XI

If the defendant makes a mistake as to the potency or the strength of the drugs or alcoholic beverage he has taken or consumed, and then commits a crime and seeks to rely on intoxication, the defense will not be made available to him and the fact that he was intoxicated will not reduce the severity of the crime or the offence. The rules with regards to self-intoxication will apply as they are.

In R v Allen (1988) the defendant drank some home-made wine, and the drink was stronger than normal or the alcoholic content in the drink was higher than normal. The defendant in his intoxicated state committed sexual assault and during the trial sought to rely on the defense of intoxication.

It was held that regardless of the strength of the drink or the fact that the defendant had made a mistake as to its potency, the consumption of the drink was still voluntary and thus the defense of intoxication would not avail itself to him especially in light of the fact that sexual assault is a basic intent crime.

The decision in R v Allen (1988) was reaffirmed by the Court of Appeal in R v Fotheringham (1989). In R v Fotheringham (1989), the defendant and his wife had hired a babysitter to take care of their child while they were out, and the babysitter was told to sleep in their bed. The defendant returned home, intoxicated, found the babysitter in bed and raped her. At the trial, the defendant sought to rely on the defense of intoxication and claimed that he thought the babysitter was his wife.

It was held that the rules with regards to self-intoxication will apply and the defense of intoxication would not avail itself to the defendant. Rape was a basic intent crime, and thus there was no scope for the defendant to rely on intoxication.

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Crime CXXXIV– Intoxication X

Intoxication is not available as a defense when the defendant makes a mistake in instances of self-intoxication. Prior to reaching a verdict the jury will take into account all the evidence that is made available to them as per Section 8 of the Criminal Justice Act (1967).

In R v O’Grady (1987) the appellant and the victim were friends and they had spent the day, in the company of another friend, drinking. Between them they had consumed eight flagons of cider after which they retired to the appellant’s home.

According to the appellant he was woken up by the victim and the appellant in self-defense picked up some broken glass and started hitting the victim over the head. Once the fight had subsisted, they patched things up and he cooked both his friends a meal and the three of them then went to bed.

The defendant and the other friend woke up the next morning to find the victim dead in bed, he had died as a result of blood loss and further investigation revealed that the victim had over 20 injuries on his face in addition to severe bruises on his head, brain, neck, and chest, and a broken rib. The blows were delivered by a sharp and blunt object.

During the trial (first instance) the judge directed the jury to the effect that the defendant or anyone else for the matter is entitled to defend himself or herself against an imminent threat/attack – “If he made such a mistake in drink he would nevertheless be entitled to defend himself even though he mistakenly believed that he was under an attack”.

However, the defensive measures that the defendant had taken went beyond what was reasonable and his ability to distinguish between what was reasonable and what was not was impaired by the drink and because the measures that he had taken went beyond what was reasonable, the defense of self-defense was not available to him. The jury convicted for manslaughter and the defendant appealed.

The appeal was dismissed, and the conviction was upheld. A defendant is not entitled to rely on self defense when there is a mistake of facts induced by voluntary intoxication.

“There were two public interests to be considered. On the one hand the defendant is entitled to take the steps or measures necessary to protect himself and on the other hand an innocent victim should be protected from the drunken mistake of another”. A defendant cannot rely on the defense of self-defense when death or injury to another results from a mistake caused by his own intoxication.  See also R v Keene (2010).

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Crime CXXXIII – Intoxication IX

A year later in R v Hardie (1984) another exception was added, in that, while intoxication was not a defense to basic intent crimes, it is a mitigating factor when the drugs that were taken were merely soporific or sedative. It is to some extent possible to say that intoxication is not a defense to basic intent crimes or crimes where the mens rea to obtain a conviction are negligence and recklessness only with regards to offences that are committed after the defendant had been drinking or drinking excessively or after taking illegal drugs or dangerous drugs.

In R v Hardie (1984) the defendant who was distressed after he’d broken up with his partner and was asked to leave the flat, took some out of date valium tablets that were not prescribed to him, and returned later and set fire to a wardrobe in his bedroom. The defendant was charged under s.1(2) and s.1(3) of the Criminal Damage Act (1971) which reads as follows: –

s.1(2) A person who without lawful excuse destroys or damages any property, whether belonging to himself or another—

(a)intending to destroy or damage any property or being reckless as to whether any property would be destroyed or damaged; and

(b)intending by the destruction or damage to endanger the life of another or being reckless as to whether the life of another would be thereby endangered;

shall be guilty of an offence

s.1(3) An offence committed under this section by destroying or damaging property by fire shall be charged as arson.

According to the defendant while he remembered being in the room he could not remember setting fire to the wardrobe. The trial judge directed the jury to the effect that voluntary intoxication is not a defense when it comes to basic intent crimes (crimes that resulted from the defendant’s negligence or recklessness) – the mens rea to obtain a conviction under s.1(2) of the Criminal Damage Act (1971) is either intention or recklessness. The jury convicted accordingly, and the defendant appealed.

The conviction was quashed and it was held that if the drug “is merely soporific or sedative” then “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 in ordinary crimes, such as would be the case with alcoholic intoxication or incapacity or automatism resulting from the self-administration of dangerous drugs”.

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Crime CXXXII – Intoxication VIII

With regards to the rule that intoxication is not a defense or is not a mitigating factor in basic intent crimes, there may be an exception when the acts of the defendant are a result or resulted from automatism, i.e. automatism is an exception to the rule that intoxication does not mitigate or reduce the severity of a basic intent crime. However, if there is intent, or the prosecution can establish intention, bearing in mind that the burden of proof is beyond reasonable doubt, the defense would not avail itself to the defendant.

In R v Bailey (1983) the defendant a diabetic went over to the house of his ex-lover’s new partner (victim), clearly upset over the fact that his ex-girlfriend had moved on. The victim invited the defendant in to discuss the matter, and the defendant who had taken his insulin but had not consumed any food, prior to the visit, felt that he was going into hypoglycemic, a state caused by a lack of glucose in the body and asked the victim for a glass of sugared water and upon drinking the water, the defendant was about to leave. As he was about to step out, he dropped his glove, and the victim bent over to pick it up and while he was doing so, the defendant hit him over the head with an iron bar.

The defendant was charged under s.18 of the Offences Against Person Act (1861) and the defendant countered by stating that he had no control of his actions, having at that stage succumbed to hypoglycemia and raised the defense of automatism. The trial judge ruled that automatism, self-induced or otherwise is not a defense or a mitigating factor when it comes to basic intent crimes and the jury convicted accordingly. The defendant appealed.

The Court of Appeal upheld the conviction and ruled that while there may have been a misdirection, it was not sufficient to render the conviction unsafe.

It was decided that self-induced automatism, other that that due to intoxication, i.e. automatism that arises from excessive drinking or from the use of drugs, may be a defense in basic intent crimes.

Whether the defense would avail itself to the defendant or otherwise depends on the evidence that is presented to the jury as per s.8 of the Criminal Justice Act (1967) and it is up to the jury to decide if the defendant was sufficiently reckless, knowing that he was a diabetic and knowing that he would slip into hypoglycemia if he took his insulin without consuming food.

It could also be argued that the defendant, knowing the effects of hypoglycemia and aware of the fact that while acting in that state he would be able to raise the defense of automatism, had committed the offence with intent to cause the victim some harm, hoping that the defense would be open to him.

According to the medical evidence that was presented, the actions of the defendant did not amount to automatism or even if he was slipping into hypoglycemia, it wasn’t sufficient to give rise to automatism.

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Crime CXXXI – Intoxication VII

If the defendant makes a mistake with regards to damage to property that a normal person who was not under the influence of drinks or drugs would have made, then regardless of the fact that the defendant was intoxicated, the defense of mistaken belief will be made available to the defendant as per s.5(2)(a) of the Criminal Damage Act 1971.

The section and subsection read as follows: –

s.5(2) A person charged with an offence to which this section applies, shall, whether or not he would be treated for the purposes of this Act as having a lawful excuse apart from this subsection, be treated for those purposes as having a lawful excuse—

(a) If at the time of the act or acts alleged to constitute the offence he believed that the person or persons whom he believed to be entitled to consent to the destruction of or damage to the property in question had so consented, or would have so consented to it if he or they had known of the destruction or damage and its circumstances

In Jaggard v Dickinson (1981) the appellant had been out drinking and she came home without any money and was left stranded. She knocked on the door of her friend’s house and there was no answer and believing that her friend would have consented to her breaking into the house under the circumstances, she broke in, when in actual fact the house did not belong to her friend and she’d broken into the wrong house.

It was held that parliament had expressly provided a defense under section 5(2)(a) of the Criminal Damage Act (1971) to cover instances of honest and genuine mistakes and the courts were bound to honor the intentions of parliament.

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Crime CXXX – Intoxication VI

In 1977 as per the decision in DPP v Majewski (1977) it was decided that intoxication is not a defense when the crime that is committed is a basic intent crime. A basic intent crime is a crime where the mens rea is usually recklessness or negligence or where the defendant has not given any thought to the consequences of his actions or having given it some thought has dismissed it.

In DPP v Majewski (1977) the defendant was involved in a brawl in a pub during the course of which, he assaulted two customers, the publican, the arresting police officer and two more police officers at the station, including an inspector in his cell. The defendant argued that at the time he was severely intoxicated having been drinking and taking drugs and therefore he lacked the intention to commit the offences or did not intent to commit the offences i.e. he did not have the mens rea that was required for a conviction.

In determining whether the defendant is guilty or otherwise, the court does not merely look into whether the defendant intended to commit the crime or otherwise but it also looks at the facts in light of s.8 of the Criminal Justice Act (1967) and takes into account all the evidence that is available.

It was held that intoxication is not a defense when it comes to basic intent crimes and the defendant’s conduct is sufficient to infer the mens rea required for a conviction i.e. despite the fact that the defendant lacked the intention, mens rea can be inferred from conduct. The defendant was adjudged to be guilty.

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Crime CXXIX – Intoxication V

If the defendant became intoxicated because of external factors or factors that were to some degree or extent beyond his or her control then that might be a mitigating factor that might reduce the severity of the crime for example in instances of automatism.

There are two types of automatism:-

  1. Automatism that arises as a result of the defendant’s failure to do something or the defendant overdoing something that he is supposed to do. This type of automatism is considered or regarded as intoxication.
  2. Automatism that is precipitated by natural causes i.e. a sickness or an illness. This type of automatism is regarded as insanity.

Automatism per se is the defendant’s inability to control himself or herself, and it works in the same manner that an impulse control disorder does. However, impulse control disorders are inherent conditions that exist throughout whereas automatism only arises at certain times and in most instances if the defendant takes his or her medication in the prescribed manner, it never arises.

In R v Quick (1973) the defendant a male nurse who was a diabetic had taken insulin without consuming any food, and in addition to that had consumed alcohol which aggravated the situation (whisky and rum). He assaulted a patient who was a paraplegic and inflicted injuries that included a broken nose and a black eye.

The defendant was charged under s.47 of the Offences Against Person Act (1861) and the trial judge directed the jury on insanity (automatism that arises naturally). He was convicted and he appealed.

The appeal was allowed and the conviction was quashed. The defendant was suffering from automatism that arose from a failure to consume food after taking insulin or taking excessive insulin and his condition was further aggravated or exacerbated by the fact that he’d been drinking.

It was automatism that arose from external factors i.e. a failure to do something that is required or doing something that the defendant shouldn’t be doing given his condition and the type of automatism that the defendant suffered from fell under the category of intoxication.

The defendant lacked the mens rea or the mental element required for a s.47 conviction and while the defendant committed the act it is difficult to say that he was in full control or had any degree of control over his mind or his body at the time (according to the defendant he could not remember injuring the victim).

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Crime CXXVIII – Intoxication IV

In order to decide whether intoxication should avail itself to the defendant on otherwise the court or the jury should take into account all the evidence that is made available to them as per s.8 of the Criminal Justice Act 1967 which reads as follows: –

Proof of Criminal Intent

A court or jury, in determining whether a person has committed an offence –

(a) 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; but

(b) shall decide whether he did intend or foresee that result by reference to all the evidence, drawing such inferences from the evidence as appear proper in the circumstances.

In R v Lipman (1969) the accused was high on LSD and was hallucinating at the time. He was, as far as he was concerned, battling serpents somewhere and unwittingly stuffed bed sheets into the mouth of a little girl who died as a result. The accused was charged with murder.

The court decided that the accused was not guilty of murder because he neither had the intention to kill prior to committing the act or at the time of committing the act. However, he had still taken the life of another and he was convicted of the offense of manslaughter.

It is worth comparing the decision in Attorney-General of Northern Ireland v Gallagher (1961) with the decision in R v Lipman (1969) and we can come to the conclusion that whether a defendant is adjudged guilty of murder or manslaughter depends on whether there is criminal intent or otherwise and when that criminal intent is formed. If the intention to kill was formed prior to the defendant becoming intoxicated than the chances are high that the defendant would be convicted of murder and it is possible to say with some degree of certainty that the act was done with malice aforethought.

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Crime CXXVII – Intoxication III

If the defendant either drinks (alcohol) or takes drugs to fortify his courage or to give him “dutch courage” then regardless of whether the crime that is committed is a basic intent crime or a specific intent crime he would not be able to rely on the fact that he was intoxicated at the time and did not have the mens rea to commit the crime as a mitigating factor to reduce the severity of the act.

In Attorney-General of Northern Ireland v Gallagher (1961) the accused had a violent twist to his personality and often acted in a deranged manner, especially after he had consumed alcohol and was particularly violent towards his wife.

The accused spent some time in a mental institution, for which he blamed his wife and upon release he made up his mind to kill her. However, in order to work himself into a fit or to have the courage to kill his wife, he drank down a bottle of whisky, and once he had reached the level of intoxication where he was deprived of his senses, he killed his wife with a knife and a hammer. The accused was charged and convicted of murder. He appealed on the grounds that at the time he committed the act he was deprived of his senses and sought to raise the defense of insanity.

The House of Lords upheld the conviction, in that, at the time he formed the intention to kill his wife, he was in full control of his senses and therefore the act of killing his wife was premeditated and it was done with malice aforethought. The fact that he needed to consume alcohol to acquire the courage to kill his wife does not mitigate the act in anyway.

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