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The Law Commission
(LAW COM No 314)
INTOXICATION AND CRIMINAL LIABILITY
Presented to the Parliament of the United Kingdom by the Lord Chancellor and Secretary of State for Justice by Command of Her Majesty January 2009
Cm 7526
£xx.xx
ii
THE LAW COMMISSION
The Law Commission was set up by the Law Commissions Act 1965 for the purpose of promoting the reform of the law.
The Law Commissioners are:
The Right Honourable Lord Justice Etherton, Chairman Professor Elizabeth Cooke Mr David Hertzell Professor Jeremy Horder Mr Kenneth Parker QC
The Chief Executive of the Law Commission is Mr William Arnold.
The Law Commission is located at Steel House, 11 Tothill Street, London SW1H 9LJ.
The terms of this report were agreed on 4 December 2008.
The text of this report is available on the Internet at:
iii
THE LAW COMMISSION
INTOXICATION AND CRIMINAL LIABILITY
CONTENTS
Paragraph Page
PART 1: THE SCOPE OF THIS REPORT
Introduction
Criminal liability: external and fault elements Intoxication and criminal liability: the basic components Criminal liability and intoxication
Species of intoxication The Commission’s previous recommendations The structure of this Report and our recommendations
PART 2: INTOXICATION AND FAULT – THE PRESENT LAW
Introduction
Terminology: offences of specific and basic intent
Determining liability
Offences of “specific intent” – legal principle and definitional logic 2.29
Offences of “basic intent” – the decision in DPP v Majewski Justifying the rule The nature and scope of the rule The Majewski rule and mistakes of fact
Mistakes of fact and “basic intent” offences
Mistakes of fact and “specific intent” offences Directing the jury in accordance with the Majewski rule No-fault offences and offences requiring objective fault Involuntary intoxication
1
3
6
10
10
16
17
19
19
19
26
26
28
29
30
31
31
33
35
37
38
iv
The general position
Intoxication which is self-induced but involuntary Voluntary intoxication and insanity Voluntary intoxication and “honest belief” provisions Voluntary intoxication and secondary liability Voluntary intoxication and inchoate assisting / encouraging The relevance of voluntary intoxication to attempt and conspiracy
Paragraph
Page
38
39
42
43
44
45
46
PART 3: INTOXICATION AND FAULT – RECOMMENDATIONS
The Commission’s previous recommendations
Law Commission Consultation Paper No 127 (radical reform)
Law Com No 229 (a return to codification)
Law Com No 229 – the Draft Criminal Law (Intoxication) Bill Recommendations (1) – voluntary intoxication
Introduction
Specific recommendations
Recommendation 1: the Majewski rule Recommendation 2: the rule for integral fault elements Recommendation 3: the integral fault elements Recommendation 4 (defences and mistaken beliefs) Recommendation 5 (“honest belief” provisions) Recommendation 6 (negligence and no-fault offences)
Specific recommendations for those who assist or encourage crime Introduction
Recommendation 7 (secondary liability generally) Recommendation 8 (secondary liability – joint enterprises) 3.99 Recommendation 9 (inchoate liability)
48
48
48
49
51
53
53
55
56
58
58
60
67
68
69
69
70
72
73
v
Recommendations (2) – involuntary intoxication Specific recommendations
Recommendation 10 (the general rule)
Recommendation 11 (species of involuntary intoxication) 3.125 Recommendations (3) – evidence and proof Additional specific recommendations
Recommendation 12 (prosecution alleges intoxication)
Recommendation 13 (D relies on intoxication) The Human Rights Act 1998 Final comment
Paragraph
Page
77
77
77
78
81
81
81
81
83
85
PART 4: INVOLUNTARY INTOXICATION AND CULPABILITY
86
PART 5: SUMMARY OF RECOMMENDATIONS
Voluntary Intoxication
Recommendation 1: the Majewski rule Recommendation 2: the rule for integral fault elements Recommendation 3: the integral fault elements Recommendation 4 (defences and mistaken beliefs) Recommendation 5 (“honest belief” provisions) Recommendation 6 (negligence and no-fault offences) Recommendation 7 (secondary liability generally) Recommendation 8 (secondary liability – joint enterprises) Recommendation 9 (inchoate liability)
Involuntary Intoxication
Recommendation 10 (the general rule) Recommendation 11 (specifics of involuntary intoxication)
92
92
92
92
92
93
93
93
93
93
94
94
94
94
vi
Paragraph Page Evidence and Proof
Recommendation 12 (prosecution alleges that D was intoxicated)  5.13                 95
Recommendation 13 (D claims he or she was intoxicated)              5.14                 95
APPENDIX A: DRAFT CRIMINAL LAW (INTOXICATION) BILL                                       97
APPENDIX B: PREVIOUS RECOMMENDATIONS                                                            116
APPENDIX C: OTHER COMMON LAW JURISDICTIONS                                                 122
vii
1    It is to be noted that the law draws no distinction between the effects of (dangerous) drugs voluntarily taken by D and self-inflicted drunkenness; see, eg, Lipman [1970] 1 QB 152, 156 and s 6(6) of the Public Order Act 1986.
2    Page 65.
3    Above. According to the 2006/2007 British Crime Survey, p 65, the figure is 46%, approximately the same as the figure recorded for 2005/2006 (45%). Crime in England and Wales 2001/2002: Supplementary Volume (2003) p 58 records the figure as 47% for that period.
4    Above, pp 65 and 72 (table 3.06). The figure for 2006/2007 is 17%, compared with 23% for 2005/2006. The figure for 2001/2002 was 21% (Crime in England and Wales 2001/2002: Supplementary Volume (2003) p 58).
5    Cabinet Office, 15 March 2004.
6    Above, pp 4 and 13.
7    Above, pp 14 and 46.
1
(c)       more than half of those arrested for breach of the peace and nearly half of those arrested for causing criminal damage had
been drinking;8 and
(d)       the annual cost of alcohol-related crime and antisocial conduct is about £7.3 billion.9
8    Above, p 45.
9    Above, pp 13 and 44. For media perceptions, see, eg: BBC News, 7 November 2005 “Campaign cuts drink-fuelled crime” http://news.bbc.co.uk/1/hi/england/tyne/4413698.stm; BBC News, 27 January 2005 “Alcohol blamed for violent crime”
http://news.bbc.co.uk/1/hi/england/london/4212681.stm; The Sunday Times, 14 March 2004, p 1: “Drunken street violence out of control, admits government”; and Evening Standard, 15 March 2004, p 25: “Binge drinking war as big death toll emerges”. In his foreword to the report Alcohol Harm Reduction Strategy for England, the then Prime Minister himself stated that “increasingly, alcohol misuse by a small minority is causing ... crime and antisocial behaviour in town and city centres”.
10   According to the report Alcohol Harm Reduction Strategy for England, at pp 4 and 13, 61% of the population consider alcohol-related violence to be worsening.
11   It should be noted that D’s voluntary consumption of an alcoholic drink which is stronger than D believes it to be does not amount to involuntary intoxication; see Allen [1988] Criminal Law Review 698.
12   The doctrine of secondary liability permits D to be liable to the same extent as a perpetrator (P) for P’s offence if D, acting with the state of mind required for secondary liability, encouraged or assisted P to commit that offence. It is also possible, in some circumstances, for D to be liable for P’s offence on the basis that D “procured” (caused) it. See generally: Law Com No 305 (2007), Participating in Crime.
2
CRIMINAL LIABILITY: EXTERNAL AND FAULT ELEMENTS
(1)      a conduct element (D’s act or failure to discharge a legal duty to act);16
(2)      a consequence element (an effect caused by D’s conduct, for example the death of another person);
(3)      a circumstances element (for example, a liability requirement that D’s conduct has to occur in a public place).
13   Often referred to as the actus reus.
14   The doctrine of secondary liability is explained in fn 12 above.
15   For some offences, however, it is difficult to distinguish between the fault and the external element. Examples are careless driving and gross negligence manslaughter.
16   The conduct element is usually considered to contain the further requirement of volition. That is to say, D must voluntarily do the act (or omission) in question to be liable. There can be exceptions to this rule, however: see, eg, Winzar v Chief Constable of Kent (1983) The Times, 28 March.
3
1.12 Some offences do not require any fault at all, but where fault is required for criminal liability it may incorporate any or any combination of the following ingredients:
(1)      intent as to a consequence,17 a term which covers D’s purpose18 and also D’s foresight of a virtually certain consequence;19
(2)      knowledge or belief as to a present fact (which exists);20
(3)      belief as to the highly probable or certain existence of a present or future fact (which may or may not need to exist);21
(4)      belief as to the possible existence of a present or future fact (which may or may not need to exist),22 including the concept of “subjective
recklessness”;23
(5)      dishonesty;24
(6)      negligence, requiring proof that D’s conduct fell below the standard to be expected of a reasonable (and sober) person;25
17   Compare intention as to conduct, which, as explained in fn 16 above, is usually considered to be an aspect of the external element.
18   The state of mind of a person whose conduct is aimed at achieving something.
19   The position is that the jury are entitled to infer that D “intended” a consequence from the fact that D foresaw it as a virtually certain result of his or her conduct, even though it was not D’s purpose to achieve it: Woollin [1999] 1 AC 82.
20   See, eg, Theft Act 1968, s 22(1) (handling stolen goods) requiring the objective fact that the goods in question are stolen and that D knew or believed they were stolen. For the meaning of belief in this context, see Forsyth [1997] 2 Cr App R 299, 320 to 321: “the mental acceptance of a fact as true or existing”.
21   Leaving aside the doctrine of joint enterprise, D may be secondarily liable for an offence X committed by P (an objective requirement of such liability) if D provides P with assistance and believes that P will commit offence X (see Johnson v Youden [1950] 1 KB 544 and, more generally, Law Com No 305 (2007), Participating in Crime, paras B.101 to B.117). With regard to Part 2 of the Serious Crime Act 2007, D may be liable under s 45 for encouraging or assisting the commission of an offence X if, having done an act capable of encouraging or assisting the commission of offence X, D believes another person will do the conduct required for offence X (with D’s encouragement or assistance) and foresees that that conduct might be done with the fault required for offence X (s 47(3) and (5)(a)(ii)). D may be liable under s 45 even if offence X is never committed.
22   For example, D is liable for battery if D applies unlawful force to another person (an objective requirement of such liability) believing that his or her conduct might result in the application of unlawful force to another person. In addition, as explained in fn 21 above, D will be liable under s 45 of the Serious Crime Act 2007 for encouraging or assisting the commission of an offence X if, having done an act capable of encouraging or assisting the commission of offence X, D believes another person will do the conduct required for offence X (with D’s encouragement or assistance) and foresees that that conduct might be done with the fault required for offence X (s 47(3) and (5)(a)(ii)). D may be liable under
s 45 even if offence X is never committed.
23   Recklessness is defined with reference to D’s awareness of a risk and to D’s taking of the risk without justification. An example is provided by the fault requirement of battery (fn 22 above).
24   See Ghosh [1982] QB 1053, where it was held that D is dishonest if (i) reasonable people would regard D’s behaviour as dishonest and (ii) D is aware that reasonable people would regard D’s behaviour as dishonest. See also Theft Act 1968, s 2.
4
(7) objective (“Caldwell”) recklessness,26 insofar as the concept still exists.27
1.13     Here are some crimes exemplifying these fault and external elements:
(1)      D’s liability for the offence of murder requires (i) conduct by D which (ii) caused another person’s death, where (iii) D acted with the intention to kill or to cause grievous bodily harm to another person;
(2)      D’s liability for the offence of battery requires (i) conduct by D which (ii) constituted or resulted in the application of unlawful force to another person, where (iii) D either intended to apply unlawful force or was subjectively reckless as to the application of such force;
(3)      D’s liability for the offence of theft requires (i) the appropriation by D of another person’s property, where (ii) D acted dishonestly with (iii) the intention permanently to deprive the other person of the property.
25   Where “gross negligence” is required for liability, D’s conduct must fall far below the expected standard: D’s conduct must be so bad that it ought to be considered “gross” (a question for the jury); see Adomako [1995] 1 AC 171.
26   Following Caldwell [1982] AC 341. D is Caldwell reckless if D is subjectively reckless or if D does not foresee the relevant risk but a reasonable person would have foreseen it. (It seems there is no Caldwell recklessness, however, if D contemplates the question but wrongly concludes that there is no risk.)
27   It remains to be seen whether there is now any place for objective recklessness in English criminal law in the light of the House of Lords’ judgment in G [2003] UKHL 50, [2004] 1 AC 1034, where the concept was finally abandoned in relation to allegations of criminal damage. The objective Caldwell test had previously been held to apply to the use of the word “reckless” in all statutory offences (Lawrence [1982] AC 510, 525 by Lord Diplock); and the decision in G was expressly limited to the Criminal Damage Act 1971 ([28] by Lord Bingham, who expressly approved Lawrence, and [43] by Lord Steyn). Nevertheless, it is quite possible that the subjective approach now adopted for criminal damage will be followed in relation to other statutory offences defined with reference to “recklessness”. It is to be noted that in A-G’s Reference (No 3 of 2003) [2004] EWCA Crim 868, [2005] QB 73, a case relating to the common law offence of misconduct in public office, the Court of Appeal concluded that G contained “general principles” that were binding on it ([12] and [45]).
28   However, if D relies on the common law defence of insanity to show that he or she did not act with the required fault, it is for D to prove the defence.
29   D may, however, be liable for an alternative offence. Where D is charged with murder, D may be liable for manslaughter rather than murder, notwithstanding his or her proven or admitted fault for murder, on the ground that he or she has a partial defence such as provocation.
5
INTOXICATION AND CRIMINAL LIABILITY: THE BASIC COMPONENTS
30   Automatism is the general defence to liability based on the fact that D did not act with the volition usually required for criminal liability, but it cannot be relied on if D’s condition was culpably self-induced (eg, by the voluntary consumption of alcohol).
31   See para 1.13(1) above.
6
32   See para 1.13(2) above.
33   Nor, it will be seen, are these effects of intoxication considered to be relevant if D’s state of intoxication was involuntary, if D acted with the fault required by the definition of the offence charged. This aspect of the law is addressed in Part 4.
34   This distinction is not significant for the purposes of this introduction, but an explanation is provided in fn 70 in Part 3 below.
35   Paragraphs 2.47 to 2.60 below.
36   Criminal Damage Act 1971, s 5(2)–(3); see paras 2.94 to 2.97 below.
7
37   Paragraphs 2.75 to 2.89 below.
38   Paragraph 1.15 (and fn 30) above.
39   It will be seen in paras 2.85 to 2.86 below that an unsatisfactory distinction has been drawn at common law between dangerous and soporific drugs for determining the nature of D’s intoxication (with no criteria for determining how any particular drug should be categorised). For example, the benzo-diazepines, such as Valium, are taken clinically to increase sedation, but they can also cause aggression. See generally Law Com No 229 (1995), Legislating the Criminal Code: Intoxication and Criminal Liability, para 5.42.
8
(1)      the question whether D’s intoxication should be classified as “voluntary” or “involuntary”;
(2)      the question whether the fault element in the definition of the offence charged is or is not one to which voluntary intoxication should be considered relevant;
(3)      the question whether voluntary intoxication should be considered relevant to the defences to which D’s state of mind may be relevant;
(4)      the test to be applied in cases where voluntary intoxication is not relevant to the determination of D’s criminal liability; and
(5)      the test to be applied in cases where it is alleged that D did not perpetrate the offence charged but encouraged or assisted a perpetrator to commit it.42
40   Part 2 of the Serious Crime Act 2007.
41   See paras 2.98 to 2.105 below.
42   It will be seen that a similar problem arises under Part 2 of the Serious Crime Act 2007, for cases where D is charged with an inchoate offence of encouraging or assisting crime.
9
CRIMINAL LIABILITY AND INTOXICATION
Species of intoxication
43   Appendix A (with explanatory notes).
44   The question of D’s liability in a case where he or she acted with the fault required for liability, but committed the offence because of reduced inhibitions arising from voluntary intoxication, requires no analysis. D should clearly be liable for an offence in any such case.
45   Our summary draws on Mackay, Mental Condition Defences in the Criminal Law (1995) p 145.
46   Other possible effects of alcohol are “pathological intoxication”, where D behaves in an uncharacteristic manner, and “alcoholic amnesia” amounting to a total or partial inability to remember what happened while drunk. See Mackay, Mental Condition Defences in the Criminal Law (1995) p 147.
47   The fact that D’s anxieties are allayed as a result of having taken an opiate, giving D enhanced self-confidence, may be of particular significance for some types of offending, particularly if D suffers no significant deterioration in his or her mental ability or manual dexterity (see MG Paulsen, “Intoxication as a Defense to Crime” (1961) University of Illinois Law Forum 1, 23 to 24).
10
Example 1A
D is charged with having committed a battery against V.49 The defence may claim that, although it can be proved that D did an act which resulted in the application of unlawful force to another person (V), and that D intended to apply unlawful force to V, D acted in this way only because he or she had been drinking strong lager and that, if sober, D would have avoided any confrontation with V.
As explained above, D cannot rely on his or her state of self-intoxication in this example to avoid liability. D is guilty of battery.
1.39 Secondly, an intoxicant may cause D to misapprehend risks and/or mistakenly perceive the surrounding circumstances or the consequences of his or her conduct. This may mean that, whilst it can be proved that D committed the external element of an offence, it is not possible to prove that D had the culpable state of mind for liability according to its definitional requirements:
Example 1B
D stabs V with a knife causing V’s death. D was aiming to strike V’s hand with the weapon, but, due to intoxication, stabbed V in the heart.
Example 1C
D stabs V with believed that V
a knife causing V’s death. was a mannequin.
Due to intoxication,
D wrongly
48   The effect of alcohol or other drugs on a person who is affected by a mental disorder may increase the risk that he or she will act violently, although much depends on the nature of the disorder . See, for example, the paper by the National Programme on Forensic Mental Health Research and Development, “Dual Diagnosis of Mental Disorder and Substance Misuse” (2007) pp 14 to 16.
49   Paragraph 1.13(2) above.
11
D is not liable for the offence of murder50 in these examples if D did not intend to kill or cause grievous bodily harm to V or any other person.
(1)      D is liable for battery54 if, notwithstanding his or her self-induced state of intoxication, D intended to apply unlawful force to V. If D’s battery caused V’s death, D is also liable for manslaughter.
(2)      D is liable for battery even though, because of D’s self-induced state of intoxication, D did not intend to apply unlawful force to V or foresee the risk that V (or anyone else) would suffer the application of unlawful force, so long as D would have foreseen that risk if D had been sober. If D’s battery caused V’s death, D is liable for manslaughter.
50   Paragraph 1.13(1) above.
51   Similarly, D is not liable for murder if D took V to be an ape and intended to kill or seriously injure that (imagined) ape.
52   Paragraph 1.17 above.
53   See paras 2.35 to 2.42 below.
54   Paragraph 1.13(2) above.
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Example 1D
D voluntarily consumes
20 pints of
strong lager and,
as a result, enters into
a state of automatism.
D wanders
into
a crowd of
people, striking
out at
them and hitting one individual.
55   As explained in fn 16 above, volition is an implicit requirement of the conduct element of most offences.
56   See fn 30 above. Of course, if D’s state of automatism meant that D did not act with the culpable state of mind required for liability, and that state of mind is regarded as a “specific intent”, then D is not liable for the offence charged for that reason.
57   Insofar as the intoxication affected D’s state of mind in a relevant respect or D’s capacity for voluntary conduct.
13
58   There could, however, be relatively minor liability for an offence not requiring proof of subjective fault (if D was not acting as an automaton).
59   G. Williams, Textbook of Criminal Law (2nd ed, 1983) p 466. It is not strictly correct to refer to an “exemption” from liability, but Williams’ argument is nonetheless a powerful one.
14
15
THE COMMISSION’S PREVIOUS RECOMMENDATIONS
(“the 1995 report”).62
60   The question was addressed in the Butler Committee’s Report of the Committee on Mentally Abnormal Offenders (1975) Cmnd 6244 and in the Criminal Law Revision Committee’s Fourteenth Report, Offences Against the Person (1980) Cmnd 7844. See generally Appendix B. For the Law Commission’s involvement, see below.
61   Law Commission Consultation Paper No 127.
62   Law Com No 229.
63   See Law Com No 229, para 1.13.
64   A Criminal Code for England and Wales: Report and Draft Criminal Code Bill (1989) Law Com No 177, Vol 1, cl 22.
65   Law Com No 229, para 1.3.
66   Above.
67   Paragraph 3.23.
16
THE STRUCTURE OF THIS REPORT AND OUR RECOMMENDATIONS
1.72     Our recommendations are summarised in Part 5.
68   See para 1.33 above.
69   As explained in fn 44 above, no similar issue arises in the context of voluntary intoxication.
17
70 That is to say, although our new draft Bill does not seek to address all the unusual factual scenarios covered by the 1995 Bill, it does encompass both primary liability (perpetrators) and secondary liability (accessories).
18
PART 2
INTOXICATION AND FAULT – THE PRESENT
LAW AND ITS LIMITATIONS
INTRODUCTION
(1)      voluntary (self-induced) intoxication, or
(2)      involuntary intoxication.
TERMINOLOGY: OFFENCES OF SPECIFIC AND BASIC INTENT
1    See paras 1.17, 1.28 and 1.60.
2    Still often referred to as the “mens rea” of the offence.
3    See, in particular, the leading case of DPP v Majewski [1977] AC 443, 478. Williams, Textbook of Criminal Law (2nd ed, 1983) p 471, notes that in DPP v Majewski “the law lords . . . while unanimous that there is such a distinction . . . failed to agree on a definition of the two intents”.
4    Legislating the Criminal Code: Intoxication and Criminal Liability (1995), Law Com No 229; see para 1.63 above.
5    Law Com No 229, above, para 3.17.
19
6    In DPP v Newbury [1977] AC 500, 509, Lord Salmon said: “what is called a basic intention . . . is an intention to do the acts which constitute the crime.” In Heard [2007] EWCA Crim 125, [2008] QB 43, the trial judge equated the requirement of basic intent with the notion of acting “deliberately rather than accidentally”, a ruling upheld on appeal (paras 8, 23 and 32).
7    Gross negligence manslaughter. See Part 1, fn 25.
20
another person.15
8    Paragraph 1.13(1) above.
9    The doctrine of secondary liability is summarised in fn 12 of Part 1 above.
10   If, for example, D provides P with encouragement or assistance in relation to a joint venture to burgle V’s house, and during the burglary P murders V, D is liable for murder (an offence of “specific intent”) if D foresaw the possibility that murder would be committed during the course of the venture: Chan Wing-Siu [1985] 1 AC 168, Powell and Daniels [1999] 1 AC 1. See paras 2.98 to 2.101 below.
12   The Court of Appeal took the view that an “ulterior intent” so defined is a “specific intent” (whether or not the state of mind in question requires proof of intent), although it was also accepted that the term “specific intent” encompasses other states of mind too. We take the view that this suggestion, that recklessness can be a “specific intent”, is contrary to an established interpretation of the distinction between “basic” and “specific” intents and should be disregarded (see para 2.20 below). On this point, the decision in Caldwell [1982] AC 341 is still good law.
14   See also MacPherson [1973] RTR 157, fn 22 below.
15   Section 1(1) of the Sexual Offences Act 2003. The previous definition of rape in section 1 of the Sexual Offences Act 1956, which did not include any explicit reference to “intention”, was considered to be an offence of “basic intent”. The decision in Heard [2007] EWCA Crim 125, [2008] QB 43 suggests that the inclusion of “intentionally” in s 1(1) of the Sexual Offences Act 2003 is nothing more than an explicit reference to the (previously implicit) external element requirement of volition rather than an aspect of the offence’s fault element. However, in the recent case of G [2008] UKHL 37, [2008] 1 WLR 1379, at paras 3, 21 and 46, the equivalent requirement of intentional penetration in s 5(1)(a) of the 2003 Act (rape of a child under 13) was assumed to be a fault requirement (by Lord Hoffmann, Lord Hope and Baroness Hale respectively).
21
2.13     The Court of Appeal has since recognised that there is
16   Caldwell [1982] AC 341, 355. The position would appear to be different, however, if the prosecution frames the information or indictment to allege nothing other than that D acted with intent. In Caldwell it was also held (at p 356) that criminal damage contrary to s 1(2) of the Criminal Damage Act 1971 was an offence of “specific intent” if there was no explicit prosecution allegation of recklessness in respect of the endangerment of life.
17   DPP v Majewski [1977] AC 443, 476.
18   Savage [1992] 1 AC 699, 740. Maliciously wounding or inflicting grievous bodily harm, contrary to s 20 of the Offences Against the Person Act 1861, and assault occasioning actual bodily harm, contrary to s 47 of the Offences Against the Person Act 1861, are also offences of basic intent, as is manslaughter.
19   Section 22(1) of the Theft Act 1968 requires proof that D knew or believed that the relevant goods were stolen. In Durante [1972] 1 WLR 1612, where the Court of Appeal refers to “the necessary intent” rather than the question of knowledge or belief, this state of mind was considered to be a “specific intent”.
20   “Dishonesty” should be regarded as a “specific intent” because it incorporates a requirement of knowledge (or belief) as to what reasonable people regard as dishonest; see fn 24 in Part 1 above.
21   (1994) 158 JP 1138.
22   Similarly, in MacPherson [1973] RTR 157 it was held that the offence of taking a conveyance without consent or other lawful authority, contrary to s 12(1) of the Theft Act 1968, was one of “basic intent”, even though a purpose is required for liability (given that the taking must be “for [the taker’s] own or another’s use”).
22
no universally logical test for distinguishing between crimes in which voluntary intoxication can be advanced as a defence and those in which it cannot; there is a large element of policy; categorisation is achieved on an offence by offence basis.23
(1)      there is no significant moral difference between committing the external element of the offence with its fault element and committing the external element in a self-induced state of intoxication; and
(2)      the criminal conviction appropriately labels D as an offender even though, because of D’s voluntary consumption of alcohol or some other drug, D acted without the fault required by the definition of the offence.
23   Heard [2007] EWCA Crim 125, [2008] QB 43, para 32, accepting counsel’s submission at para 12(ii).
24   In Heard [2007] EWCA Crim 125, [2008] QB 43, para 30(i), the Court of Appeal, referring to DPP v Majewski [1977] AC 443, accepted that moral equivalence justified denying D a right to rely on self-induced intoxication if the disputed fault element was not one of “specific intent”. See also Majewski [1977] AC 443, at p 479, where Lord Simon said that a “mind rendered self-inducedly insensible …, through drink or drugs, to the nature of a prohibited act or to its probable consequences is as wrongful a mind as one which consciously contemplates the prohibited act and foresees its probable consequences (or is reckless as to whether they ensue)”.
23
objectionable drunken conduct is, perhaps because it is so often a matter of thoughtless self-indulgence, one of the more offensive categories of inadvertent wrongdoing.26
(a)       murder (requiring an intention to kill or cause serious harm);29
(b)       theft (requiring an intention permanently to deprive the owner of
his or her property);30 and
26   S Gough, “Intoxication and Criminal Liability: The Law Commission’s Proposed Reforms” (1996) 112 Law Quarterly Review 335, p 337.
27   DPP v Majewski [1977] AC 443, 475 and 479, by Lord Elwyn-Jones LC and Lord Simon respectively; Caldwell [1982] AC 341, 355 and 361 to 362, by Lord Diplock and Lord Edmund-Davies (dissenting) respectively.
28   We say “generally used” because a complication has arisen as a result of the use of the term in Part 2 of the Serious Crime Act 2007. We address this problem in paras 3.104 to 3.117 below.
29   Sheehan [1975] 1 WLR 739; Sooklal v Trinidad and Tobago [1999] 1 WLR 2011; McKnight (2000) The Times 5 May.
24
(c) handling stolen goods (requiring knowledge or belief that the
goods are stolen).31
30   Ruse v Read [1949] 1 KB 377; DPP v Majewski [1977] AC 443, 477 and 482. It follows that robbery (contrary to s 8(1) of the Theft Act 1968) and burglary with intent to steal (contrary to s 9(1)(a) of the Theft Act 1968) are offences of “specific intent”. These offences may also be regarded as “specific intent” offences because of the need to prove dishonesty.
31   Durante [1972] 1 WLR 1612. This offence may also be regarded as one of “specific intent” because of the need to prove dishonesty.
32   See s 78(b) of the Sexual Offences Act 2003 and R v H [2005] EWCA Crim 732, [2005] 1 WLR 2005.
33   For the purposes of s 78(a) of the 2003 Act.
34   This was also the position for indecent assault before the 2003 Act came into force; see Court [1989] AC 28 and C (1992) 156 JP 649.
36   Above, para 15.
37   See, eg, Lord Mustill’s view in Kingston [1995] 2 AC 355, 369, that self-induced intoxication is “a substitute for the mental element ordinarily required by the offence”. See also DPP v Majewski [1977] AC 443, 474 to 475:
If a man of his own volition takes a substance which causes him to cast off the restraints of reason and conscience, no wrong is done to him by holding him answerable criminally for any injury he may do while in that condition. His 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.
25
DETERMINING LIABILITY
Offences of “specific intent” – legal principle and definitional logic
2.30     According to the Court of Appeal in Sheehan,40 the jury should 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.41
38   Offences Against the Person Act 1861, s 24.
39   DPP v Beard [1920] AC 479, 499 and 501 to 502; DPP v Majewski [1977] AC 443, 473. In DPP v Beard it was said that self-induced intoxication was a defence only if it rendered D incapable of forming the necessary “specific intent”. However, although the same terminology is still occasionally used (eg, in Groark [1999] Criminal Law Review 669) it is clear from numerous other cases (eg, Cole [1993] Criminal Law Review 300, O’Connor [1991] Criminal Law Review 135, Garlick (1980) 72 Cr App R 291, Pordage [1975] Criminal Law Review 575 and Sheehan [1975] 1 WLR 739) that the question for the jury is whether D actually had the required state of mind at the relevant time.
40   [1975] 1 WLR 739.
41   Above, 744. The point has been repeated in subsequent cases; see, eg, Davies [1991] Criminal Law Review 469, Bowden [1993] Criminal Law Review 380 and Brown [1998] Criminal Law Review 485.
26
mind.45
recognise that if a particular mens rea is an ingredient of an offence, no one can be convicted of that offence if he did not have the mens rea in question, whether he was drunk at the time
or not.46
42   Paragraph 1.49 above.
43   Following Woolmington [1935] AC 462, the prosecution must prove the various elements of the offence charged beyond reasonable doubt (unless D makes formal admissions in relation to those elements, obviating the need for proof).
44   See, eg, Sooklal [1999] 1 WLR 2011 and McKnight (2000) The Times 5 May.
45   The evidence should suggest that D was “rendered so stupid by drink that he [did] not know what he [was] doing” (A-G for Northern Ireland v Gallagher [1963] AC 349, 381).
46   [1975] Criminal Law Review 574.
27
Offences of “basic intent” – the decision in DPP v Majewski
2.36     According to the House of Lords, D is liable for an offence of “basic intent”:
(1)      if D commits its external element without the fault usually required for liability, if the absence of such fault results from self-induced intoxication; or
(2)      if D’s self-induced intoxication causes him or her to commit the external element as an automaton.
48   The leading speech was delivered by Lord Elwyn-Jones LC, with whom Lords Diplock, Simon and Kilbrandon expressed agreement. Lords Salmon, Edmund-Davies and Russell delivered concurring speeches.
49   See para 2.18 above.
50   Similarly, if the prosecution charges D with wounding or causing grievous bodily harm with the intent to do grievous bodily harm, contrary to s 18 of the Offences Against the Person Act 1861, but cannot prove that intent because of D’s voluntarily intoxicated state at the time the harm was caused, D is nevertheless liable for the alternative “basic intent” offence of maliciously (that is, recklessly) inflicting grievous bodily harm, contrary to s 20 of the Act.
28
Illogical though the present law may be, it represents a compromise between the imposition of liability upon inebriates in complete disregard of their condition (on the alleged ground that it was brought on voluntarily), and the total exculpation required by the defendant’s actual state of mind at the time he committed the harm in issue.51
2.40     As Professor Ashworth points out:
Murder and wounding with intent are crimes of specific intent, and there is no great loss of social defence in allowing intoxication to negative the intent required for those crimes when the amplitude of the basic intent offences of manslaughter and unlawful wounding lies beneath them – ensuring D’s conviction and liability to sentence.52
Justifying the rule
(1) the maintenance of order and the need to keep public and private violence under control is the prime purpose – or one of the prime purposes – of the criminal law;54
51   DPP v Majewski [1977] AC 443, 495.
52   Ashworth, Principles of Criminal Law (5th ed, 2006) p 212.
53   [1970] 1 QB 152.
54   DPP v Majewski [1977] AC 443, 469, by Lord Elwyn-Jones LC; by Lord Simon at p 476; by Lord Salmon at p 484; and by Lord Edmund-Davies at p 495.
29
(2)      self-induced intoxication through the consumption of alcohol has been a factor in crimes of violence, such as assault, throughout the history of crime, but in recent decades the problem has become more acute by virtue of the voluntary consumption of other drugs;55
(3)      to allow D to avoid all liability in a case where he or she has caused injury or death to another person, on the basis that he or she lacked the fault element for liability because of self-induced intoxication, would fail to give effect to the prime purpose of the criminal law; in particular, it would:
(a)       “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”;56 and
(b)       “shock the public, ... rightly bring the law into contempt and ... certainly increase one of the really serious menaces facing
society today”;57
(4)      to provide the community with sufficient protection, therefore, there must be a “substantive rule of law” to the effect that “self-induced intoxication provides no defence” to an allegation that D committed an offence of
“basic intent”;58
(5)      the interests of the accused are adequately protected in that the trial judge or magistrates will, when sentencing, “always carefully [take] into account all the circumstances ... before deciding which of the many courses open should be adopted”.59
The nature and scope of the rule
2.44 Although the Majewski rule means that D can be convicted of an offence requiring subjective recklessness, even though D was not reckless in the way required by the definition, the House of Lords expressed the view that this does not violate the principles of justice. According to Lord Elwyn-Jones:
55   Above, p 469, by Lord Elwyn-Jones LC. See also the comments of Lord Simon at p 476 and Lord Edmund-Davies at p 495.
56   Above, p 476, by Lord Simon.
57   Above, p 484, by Lord Salmon. In a similar vein, the Lord Chancellor approved, at p 469, the comments of Lawton LJ in the Court of Appeal as to “how serious from a social and public standpoint the consequences would be if men could behave as [D] did and then claim that they were not guilty of any offence”. According to Lord Salmon, at p 484: “the social consequence could be appalling”. Lord Russell said, at p 498: “The ordinary citizen who is badly beaten up would rightly think little of the criminal law as an effective protection if, because his attacker had deprived himself of [the] ability to know what he was doing by getting himself drunk or going on a trip with drugs, the attacker is to be held innocent of any crime in the assault.”
58   Above, p 469, by Lord Elwyn-Jones LC. The point that the rule is one of substantive law was also made at p 476.
59   Above, p 484, by Lord Salmon.
30
If a man of his own volition takes a substance which causes him to cast off the restraints of reason and conscience, no wrong is done to him by holding him answerable criminally for any injury he may do while in that condition. His 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.60
THE MAJEWSKI RULE AND MISTAKES OF FACT
Mistakes of fact and “basic intent” offences
60   Above, pp 474 to 475.
61   Compare Smith & Hogan, Criminal Law (12th ed, 2008) p 298 which, we suggest, oversimplifies the true position:
There is ... an implied qualification to every statute creating an offence and specifying a mens rea other than a specific intent. The mens rea must be proved – except ... where the accused was intoxicated through the voluntary taking of drink or drugs.
31
62   Sexual Offences Act 1956, s 1(2)(b).
63   That rape was to be regarded as an offence of “basic intent” – and that D’s mistaken belief, caused by self-induced intoxication, that V was consenting was irrelevant – is apparent from the speech of Lord Russell in DPP v Majewski [1977] AC 443, 499 to 500 and the subsequent decision of the Court of Appeal in Woods (1981) 74 Cr App R 312. See also Fotheringham (1988) 88 Cr App R 206, where the Court of Appeal held that D’s mistaken belief, caused by self-induced intoxication, that V was his wife was no defence to the allegation of rape (as then defined).
64   As explained in para 2.9 above, the use of the word “intentionally” in s 1(1)(a) of the Sexual Offences Act 2003 has not affected the status of rape as an offence of “basic intent”.
65   Williams (Gladstone) (1983) 78 Cr App R 276, 280; Beckford [1988] AC 130, 144.
66   O’Grady [1987] QB 995; Hatton [2005] EWCA Crim 2951, [2006] 1 Cr App R 16 (247). See also the discussion in J Rogers, “Have-A-Go Heroes” (2008) 158 New Law Journal, Feb 29, 318.
32
of duress.67
Mistakes of fact and “specific intent” offences
This brings us to the question of public order. There are two competing interests. On the one hand the interest of the defendant who has only acted according to what he believed to be necessary to protect himself, and on the other hand that of the public in general and the victim in particular who, probably through no fault of his own, has been injured or perhaps killed because of the defendant’s drunken mistake. Reason recoils from the conclusion that in such circumstances a defendant is entitled to leave the Court without a stain on his character.72
67   For a summary of the present law on duress, see: Murder, Manslaughter and Infanticide, Law Com No 304 (2006) pp 112 to 114.
69   Paragraphs 2.50 to 2.52 above.
70   Williams (Gladstone) (1983) 78 Cr App R 276, 280; Beckford [1988] AC 130, 144.
71   [1987] QB 995, followed in O’Connor [1991] Criminal Law Review 135.
72   [1987] QB 995, 1000, by Lord Lane CJ, cited in Hatton [2005] EWCA Crim 2951, [2006] 1 Cr App R 16 (247), at para 13.
33
(1) the need to respect requirements of fault;
(2)      the need to protect the public from drunken violence; and
(3)      the need to label appropriately those who violate personal and property rights (bearing in mind the reason for the violation).
74   Above.
77   [1991] Criminal Law Review 135.
78   [2005] EWCA Crim 2951, [2006] 1 Cr App R 16 (247), paras 23 and 25.
79   Manslaughter, whether by gross negligence or an unlawful and dangerous (criminal) act, is a “basic intent” offence. However, it might be argued that a conviction for manslaughter would be insufficient in cases of this sort to satisfy the demands of retribution, labelling and public protection.
80   [2005] EWCA Crim 2951, [2006] 1 Cr App R 16 (247), paras 23 and 24.
83   And the equivalent rule for the analogous defence in section 3(1) of the Criminal Law Act 1967.
34
DIRECTING THE JURY IN ACCORDANCE WITH THE MAJEWSKI RULE
(1)      if D’s self-induced intoxication of itself caused D not to have the state of mind required for liability, and D would have had that state of mind if sober, the jury should for that reason return a verdict of guilty;89
(2)      if D’s self-induced intoxication was one of two or more factors which caused, or might have caused, D not to have the state of mind required for liability, the jury should consider whether D would have had the required state of mind if D had not at that time been intoxicated.90 So, if we take the fault requirement of subjective recklessness:
(a) if D would have been aware of the relevant risk, if D had not been intoxicated to that extent, D is to be held liable for the offence;
84   Paragraphs 3.53 to 3.72.
85   (1917) 12 Cr App R 221.
88   Smith & Hogan, Criminal Law (12th ed, 2008) p 299.
89   The same approach applies if self-induced intoxication caused D to act as an automaton, as in DPP v Majewski [1977] AC 443 (alcohol) and Lipman [1970] 1 QB 152 (LSD).
90   Williams, Textbook of Criminal Law (2nd ed, 1983) p 475 rightly points out that the “law can hardly be that evidence . . . that the defendant had consumed a couple of pints of beer turns what would otherwise have been an offence requiring [fault element] into an offence of strict liability”.
35
(b) if it is reasonably possible that D would not have been aware of the relevant risk, even if D had not been intoxicated, D is not to be held liable for the offence.91
When recklessness establishes an element of the offence, if the actor, due to self-induced intoxication, is unaware of a risk of which he would have been aware had he been sober, such unawareness is immaterial.
The Lord Chancellor accepted at p 475 as correctly stating English law the provision in section 2.08(2) of the American Model Penal Code.
(1)      whether D actually foresaw the possibility of some harm being caused to V; and, if not,
(2)      whether D would have foreseen, had D not been drinking alcohol, that his or her conduct might cause V some harm.97
91   In the words of Professor Glanville Williams, “Two Nocturnal Blunders “(1990) 140 New Law Journal 1564: “the defendant will still get off if the court thinks that a sober person might have made the same mistake”.
93   Above, p 475.
95   [1999] 1 Cr App R 392.
96   Savage [1992] 1 AC 699, 751.
97   [1999] 1 Cr App R 392 at p 396, following the decision of the Courts-Martial Appeal Court in Aitken [1992] 1 WLR 1006, 1011 to 1017. Surprisingly, however, the Court of Appeal felt (at p 397) that an honest mistake as to whether V was consenting to D’s conduct was a defence, even if D would have known that V was not consenting if he had not been intoxicated. We consider this aspect of the decision to be incorrect, given the approach adopted by the Court of Appeal in relation to D’s mistaken understanding of consent in cases of alleged rape and indecent assault.
36
NO-FAULT OFFENCES AND OFFENCES REQUIRING OBJECTIVE FAULT
(1)      if, on account of his or her voluntary intoxication, D gave no thought to the existence of the relevant risk, but a reasonable, sober person would have foreseen that risk, D is Caldwell reckless and therefore liable;100
(2)      if D relies on the “lacuna” to the Caldwell test, that is, D says that he or she consciously considered whether the risk existed and decided that there was no risk at all, then liability is established (by virtue of the Majewski rule for recklessness) if D would have foreseen the risk had he or she not been voluntarily intoxicated.
98   E Paton, “Reformulating the Intoxication Rules: The Law Commission’s Report” [1995] Criminal Law Review 382, 383.
99   [1982] AC 341; see para 1.12(7) above.
100  Compare Cullen [1993] Criminal Law Review 936, where this was overlooked.
101  Paragraphs 2.50 to 2.53.
37
INVOLUNTARY INTOXICATION
The general position
or “basic intent”.102
once the involuntary nature of the intoxication is added the ... theories of Majewski fall away, and the position reverts to what it would have been if Majewski ... had not been decided, namely that the offence is not made out ...105
102  Kingston [1995] 2 AC 355, 370. See also Smith & Hogan, Criminal Law (12th ed, 2008) p 296 and Williams, Textbook of Criminal Law (2nd ed, 1983) p 482. Section 6(5) of the Public Order Act 1986 provides as follows (emphasis added): “For the purposes of this section a person whose awareness is impaired by intoxication shall be taken to be aware of that of which he would be aware if not intoxicated, unless he shows . . . that his intoxication was not self-induced.
103  If D’s own alcoholic drink was laced, the effect of the additional alcohol or drugs would presumably be regarded as involuntary intoxication, assuming it would be possible in practice to distinguish between the effects of the different intoxicants.
105  Above, p 370. What Lord Mustill says about the pre-Majewski law may be inaccurate, in that broadly the same approach as that taken in Majewski had previously been taken in Beard [1920] AC 479.
38
Intoxication which is self-induced but involuntary
[S]elf-induced automatism, other than 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 have proved the necessary element of recklessness.109
106  The Scottish case of Ross v HM Advocate 1991 SLT 564, where D’s can of lager was laced with LSD and Temazepam causing him to act as a violent automaton, provides an example of the type of situation.
107  Burns (1973) 58 Cr App R 364; Quick [1973] QB 910; Bailey [1983] 1 WLR 760.
109  Above, p 765. Self-induced automatism was already established as a defence to offences of “specific intent”, insofar as the state of automatism meant that D did not act with the culpable state of mind required for liability. In Bailey D was convicted of the s 18 offence and the jury was not required to return a verdict on the alternative s 20 offence. D appealed against his conviction for the s 18 offence on the basis that the jury had been misdirected. His appeal was dismissed on the ground that there was insufficient evidence that he had acted in a state of automatism.
39
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.110
110  Above, p 765.
111  Compare Quick [1973] 1 QB 910, 922 (emphasis added): “A self-induced incapacity will not excuse . . . , nor will one which could have been reasonably foreseen as a result of either doing, or omitting to do something, as, for example, . . . failing to have regular meals while taking insulin.” According to this objective test, D will be regarded as having been voluntarily intoxicated if it was reasonably foreseeable that his or her act or omission would lead to intoxication.
114  Section 1(2)–(3) of the Criminal Damage Act 1971.
115  [1985] 1 WLR 64, p 70. It was recognised, however, that this exception may itself be subject to exceptions: “It may well be that the taking of a sedative or soporific drug will, in certain circumstances, be no answer, for example in a case of reckless driving ...”
40
[D] was entitled to have his defence of automatism left to the jury ... If he was in a confused mental condition, was it due to a hypoglycaemic episode or to too much alcohol? If the former, to what extent had he brought about his condition by not following his doctor’s instructions about taking regular meals? Did he know that he was getting into a hypoglycaemic state? If yes, why did he not use the antidote of eating a lump of sugar as he had been advised to do?122
116  Above, p 69.
117  Caldwell [1982] AC 341, now superseded by G [2003] UKHL 50, [2004] 1 AC 1034. Quick [1973] 1 QB 910 (fn 111 above) also suggests that an objective test suffices.
119  [1985] 1 WLR 64, 70: “It is true that Valium is a drug and it is true that it was taken deliberately and not taken on medical prescription, but the drug is, in our view, wholly different in kind from drugs which are liable to cause unpredictability or aggressiveness.”
121  Above, pp 922 to 923.
122  This is a subjective test for fault. However, as pointed out already (fn 111) the Court propounded a test of reasonable foresight at p 922.
41
VOLUNTARY INTOXICATION AND INSANITY124
123  Paragraphs 2.75 to 2.77.
124  For the law on intoxication and diminished responsibility as a partial defence to murder, see: Partial Defences to Murder, Law Commission Consultation Paper No 173 (2003),
pp 149 to 154 (and, most recently, Wood [2008] EWCA Crim 1305). This aspect of the law is beyond the scope of this Report and our general recommendations for intoxication and criminal liability.
125  For example, delirium tremens.
126  The issue of insanity is determined by reference to the M’Naghten Rules, taken from M’Naghten’s Case (1843) 10 Cl & Fin 200. See: DPP v Beard [1920] AC 479, 500 to 501; A-G for Northern Ireland v Gallagher [1963] AC 349, 375 and 381; and Kingston [1995] 2 AC 355, 369.
127  See, for example, Davis (1881) 14 Cox CC 563.
128  A-G for Northern Ireland v Gallagher [1963] AC 349.
42
VOLUNTARY INTOXICATION AND “HONEST BELIEF” PROVISIONS
129  (1973) 58 Cr App R 364.
130  Compare Stripp (1978) 69 Cr App R 318, a case involving a number of alleged motoring offences. In that case it was said that if D’s automatous state might have been caused by concussion (from a blow to the head) rather than by D’s state of self-induced intoxication, D would be entitled to rely on the defence of (non-insane) automatism.
132  [1981] 1 QB 527.
133  It is an offence under s 1(1) to destroy or damage property belonging to another person.
134  See paras 2.50 to 2.53 above. Accordingly, Parliament presumably intended that the Majewski rule’s almost identical predecessor, the rule in DPP v Beard [1920] AC 479, would apply to the defence in s 5(2) of the 1971 Act.
43
VOLUNTARY INTOXICATION AND SECONDARY LIABILITY
135  [1981] 1 QB 527.
136  D relied on s 5(2)(a), which provides a defence if D “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 ... ”. Section 5(3) provides that, for the purposes of s 5, “it is immaterial whether a belief is justified or not if it is honestly held”.
137  [1981] 1 QB 527, 531. Compare Gannon (1987) 87 Cr App R 254, regarding the “belief that he has lawful authority” defence in s 12(6) of the Theft Act 1968 to a charge of taking a conveyance without consent under s 12(1). The Court of Appeal held that D’s drunken state was not evidence tending to show he had the exculpatory belief; so, as D had not been able to discharge his evidential burden, the issue should not have been addressed by the trial judge. The Court of Appeal did, however, expressly leave open the question whether a drunken belief could satisfy the s 12(6) defence.
138  See Smith [1974] QB 354.
139  In the words of Smith & Hogan, Criminal Law (12th ed, 2008) p 307: “If D, being drunk, destroys X’s property believing that it is the property of Y who would consent to his doing so, this is a defence; but if he destroys X’s property believing that it is his own, it is not.”
140  Chan Wing-Siu [1985] 1 AC 168, Powell and Daniels [1999] 1 AC 1.
141  From Chan Wing-Siu [1985] 1 AC 168.
44
VOLUNTARY INTOXICATION AND INCHOATE ASSISTING / ENCOURAGING
(1)      P’s fault;
(2)      the consequence requirement of crime X, if any; and
(3)      the circumstance requirement of crime X, if any.145
142  It is to be noted that the trial judge’s summing up in English [1999] 1 AC 1 (p 27) suggests that the jury were directed to take D’s intoxicated state of mind into account as a factor bearing on his secondary liability for murder, indicating that some judges at least already regard this state of mind as a “specific intent” if it relates to an offence of “specific intent”.
143  See para 1.56 above.
144 The relevant provisions came into force on 1 October 2008; see The Serious Crime Act 2007 (Commencement No 3) Order 2008 (SI 2008 No 2504).
145  See s 47(5)(a)(ii) and (b)(ii).
45
THE RELEVANCE OF VOLUNTARY INTOXICATION TO ATTEMPT AND CONSPIRACY
146  Paragraphs 2.100 to 2.101.
147  Section 1(1) provides as follows: “If, with intent to commit an offence to which [section 1] applies, a person does an act which is more than merely preparatory to the commission of the offence, he is guilty of attempting to commit the offence.”
148  See Law Com Consultation Paper No 183 (2007), Conspiracy and Attempts, para 14.39. As we argue in the CP, it is an important principle of inchoate offences that they should require at least recklessness as to a circumstance element to be proved, unless the substantive offence requires proof of a more stringent fault element.
46
47
PART 3
INTOXICATION AND FAULT –
RECOMMENDATIONS
THE COMMISSION’S PREVIOUS RECOMMENDATIONS
Law Commission Consultation Paper No 127 – radical reform
3.2     The Commission originally objected to the Majewski rule4 for three principal
reasons:5
(1)      there is an absence of satisfactory criteria for determining whether a crime is one of “basic intent” or one of “specific intent”;
(2)      the piecemeal approach to the development of the law has led to the underlying policy being implemented in an erratic and unprincipled way;
(3)      it is unclear whether self-induced intoxication is to be regarded as equivalent to the mental state required by the definition of the offence for liability, or whether the jury are supposed to consider the hypothetical question whether D would have had that mental state had he or she been
sober.6
1    Paragraphs 1.63 to 1.66.
2    Offences Against the Person and General Principles (1993) Law Com No 218. See Law Com No 229, para 1.13.
3    A Criminal Code for England and Wales: Report and Draft Criminal Code Bill (1989), Law Com No 177. Appendix B, below, sets out earlier recommendations made by the Commission and other bodies.
4    Paragraph 2.37 above.
5    Legislating the Criminal Code: Intoxication and Criminal Liability (1995), Law Com No 229, p 42. See generally Consultation Paper No 127, Part III.
6    This problem may have been overstated. The latter alternative must surely be correct as a matter of common sense, given the various possible degrees of “intoxication” and that there may be a number of alternative reasons for not foreseeing a particular eventuality.
48
Law Com No 229 – a return to codification
there was an almost unanimous rejection of [it] by practitioner bodies. There was an additional category of respondents who supported the new offence subject to a range of qualifications that, in our view, would have largely defeated its purpose.8
3.7     Respondents gave the following reasons for rejecting (or qualifying) this
proposal:9
(1)      the real likelihood that the offence of criminal intoxication would be regarded as a less serious offence, and would result in more trials and/or the raising of more issues at trial than is currently the case;
(2)      the likelihood of expert evidence being called on the question whether or not D’s awareness or control was “substantially impaired” would result in even lengthier trials;
(3)      the police would have to devote more time to enquiries into the extent of D’s intake of intoxicants prior to the commission of the alleged offence;
(4)      there could be practical difficulties for the prosecution with regard to whether, or when, an alternative count (that is, criminal intoxication) should be added to the indictment;10
(5)      the offence would need to incorporate an element of causation to prevent D being liable for a genuine accident which unluckily occurred while he or she was intoxicated, and which might have occurred even if D had been sober.
7    Fourteenth Report, Offences Against the Person, (1980) Cmnd 7844, pp 113 to 114. See Appendix B below.
8    Legislating the Criminal Code: Intoxication and Criminal Liability (1995), Law Com No 229, para 1.26.
9    Above, pp 43 to 44. Unsurprisingly, some of the criticisms overlap with those raised by the CLRC against a similar proposal put forward by Professors Smith and Williams.
10   This objection is weaker now that D is under a pre-trial obligation to disclose his or her defence.
49
standard.13
the judiciary (including the majority of the Queen’s Bench judges), the Law Society and many others found that the Majewski doctrine worked fairly and without any undue difficulty. We found the overall weight of these arguments convincing ...14
3.10 This left two alternatives: either do nothing, or codify the law in a way which would clarify the Majewski rule and resolve the problems associated with it.15 The Commission chose the latter option:
The results of consultation had persuaded us that the Majewski approach operated fairly, on the whole, and without undue difficulty, but that it was both desirable and necessary to set out the relevant principles clearly in codified form.16
11   The Criminal Bar Association Working Party supported abolition because there were so few cases in practice where D was so intoxicated that he or she did not have the state of mind for liability. Professor Sir John Smith approved abolition “in principle”, but recognised the possibility of public outrage should a violent drunk not be convicted of any offence after he or she had caused serious injury.
12   Legislating the Criminal Code: Intoxication and Criminal Liability (1995), Law Com No 229, paras 1.27 and 5.22.
13   Above, para 5.27.
14   Above, para 1.28. See also para 5.29.
15   The other options – to disregard the effect of voluntary intoxication in all cases, even where the alleged offence was one of “specific intent”; and to disregard the effect of voluntary intoxication in all cases, subject to a reverse onus defence which would allow D to prove absence of fault – were regarded as unacceptable in both Consultation Paper 127 and Law Com No 229. There was no significant evidence of support for either option following consultation.
16   Legislating the Criminal Code: Intoxication and Criminal Liability (1995), Law Com No 229, para 1.32.
50
Law Com No 229 – the Draft Criminal Law (Intoxication) Bill
Since [the publication in 1993 of Law Com No 218]21 the Law Commission has made separate recommendations about replacing the Majewski rules in statute law in their report “Intoxication in the Criminal Law” (LC 122) [sic].22 The Government considered these proposals, but thought that they were unnecessarily complex for the purposes of this [Offences Against the Person] Bill.
3.15     The complexity of the 1995 Bill also attracted criticism from other quarters:23
17   See paras 1.49 to 1.55 above.
18   S Gough, “Intoxication and Criminal Liability: The Law Commission’s Proposed Reforms” (1996) 112 Law Quarterly Review 335, 337.
19   Legislating the Criminal Code: Intoxication and Criminal Liability (1995), Law Com No 229.
20   Violence, Reforming the Offences Against the Person Act 1861 (1998), para 3.23.
21   Offences Against the Person and General Principles (1993). See paras B.11 to B.16 below (Appendix B).
22   The Home Office meant Legislating the Criminal Code: Intoxication and Criminal Liability (1995), Law Com No 229.
23   In contrast, J O’Leary focused his criticism on the Commission’s volte-face: O’Leary, “Lament for the Intoxication ‘Defence’” (1997) 48 Northern Ireland Law Quarterly 152.
51
[The Commission’s] proposals are geared to dealing with intoxication that renders conduct inadvertent and a complex set of additional rules are introduced to deal with intoxication resulting in mistake or automatism. Apart from its untidiness, this unnecessary complexity encourages legalistic argument and conceals dangerous loopholes and inconsistencies. ... the Commission seems to be overthinking its argument, to be founding unnecessary distinctions on irrelevant differences.24
[T]he report conducts [a] disproportionately detailed analysis of some relatively unlikely situations, culminating in clauses 5 and 6 of the Bill, which contain a total of 24 sub-clauses. ... [T]he abominable clause 6 and its nine sub-clauses ... deal solely with the case of someone who consumes one intoxicant unaware it has been laced with another intoxicant. ... It is difficult to see how this provision contributes to the “greater clarity and accessibility” ... codification is intended to bring, and hard to resist the conclusion that some eventualities are better left to judicial interpretation. ... Ironically, the most likely legislative outcome ... may be a return to the intoxication provisions of the Offences Against the Person Report. These implement the preferred policy with considerably more economy and clarity than do some of the new report’s tortured provisions.25
24   S Gough, “Intoxication and Criminal Liability: The Law Commission’s Proposed Reforms” (1996) 112 Law Quarterly Review 335, 339 and 351. Gough also criticises the Commission’s approach to causation, and the proposed abolition of the courts’ ability to decide on a case-by-case basis which offences should be offences of “basic intent” and which should be offences of “specific intent”.
25   E Paton, “Reformulating the Intoxication Rules: The Law Commission’s Report” [1995] Criminal Law Review 382, 386 to 387 and 388.
26   See para 3.26 below.
52
RECOMMENDATIONS (1) – VOLUNTARY INTOXICATION
Introduction
3.22     This statutory list should include:
(1)      the states of mind which have been held to be “specific intents” at common law;
(2)      the states of mind which would no doubt be regarded as “specific intents” at common law should the issue arise; and
(3)      the states of mind which should in any event be treated as “specific intents” as a matter of principle, on the ground that the commission of the external element of the offence with the required state of mind is fundamentally different from the commission of the external element without that state of mind through voluntary intoxication.29
27   See paras 1.48 to 1.62 above.
28   Specific statutory defences relating to D’s state of mind are to be treated as aspects of the fault element rather than “defences” if the courts have held that the defence is in effect a denial of fault and that it is for the prosecution to prove the relevant culpable state of mind. See para 3.79 below and cl 1(2) of our new Criminal Law (Intoxication) Bill.
29   See para 2.14 above.
30   This is subject to one narrow exception, explained in paras 3.104 to 3.117 below.
53
3.24 We believe the legislation should also:
(1)      set out a clear, definitive test to be applied in cases where subjective recklessness is alleged and D was voluntarily intoxicated;
(2)      provide a single rule for any situation where D wishes to rely on a general defence to which his or her state of mind is relevant, if D’s state of mind was affected by voluntary intoxication;
(3)      provide a body of rules which would allow the court to determine, without difficulty, whether or not D was voluntarily intoxicated at the relevant time; and
(4)      expressly provide for the situation where it is alleged that D encouraged or assisted a perpetrator (P) to commit an offence and is liable for the offence on that basis (as an “accessory”).
3.25
Nevertheless, as explained above,31 we believe it would be wholly inappropriate
to try to legislate at the microscopic level, whereby each and every conceivable factual scenario involving voluntary intoxication is expressly addressed. We also take the view that, as ordinary English terms which would be readily understood by the courts, “intoxicant” and “voluntary intoxication” do not need to be defined in legislation.
3.26
We therefore reject the over-inclusiveness of the 1995 Bill32 in favour of a more
open-textured approach which, if adopted, would retain certain aspects of the common law. Our new draft Bill does not expressly abolish the common law rules on intoxication. For unusual situations not covered by the legislation the common law would survive and evolve to fill any lacunae as they are identified.33
3.27 In particular, our new draft Bill does not contain provisions which would address the following situations:
(1)      D acts in a state of automatism caused by a combination of voluntary intoxication and the impact of an external agent such as a blow to the head.
(2)      D commits the external element of an offence under the combined effects of voluntary intoxication and a mental abnormality.
31   Paragraph 3.16.
32   See clauses 5 and 6 of the 1995 Bill.
33   The common law rules would be impliedly abolished to the extent that the legislation addresses the same area, but not otherwise.
54
which we refer.34
Specific recommendations
(1)      some subjective fault elements must always be proved (in which case D’s state of voluntary intoxication is relevant to the determination of D’s liability); and
(2)      some subjective fault elements, subjective recklessness in particular, do not always need to be proved (in which case D’s state of voluntary intoxication is irrelevant to the determination of D’s liability).
34   The only justification for being wholly conclusive on this issue would be to ensure that D would not receive an absolute acquittal if he or she was affected by self-induced intoxication and a mental abnormality of a type which would be likely to cause D to act in the same way again (see Burns (1973) 58 Cr App R 364). However, the Court of Appeal’s suggestion in that case (para 2.93 above) is best regarded as an aberration, and we doubt whether it would be followed.
35   The Bill is set out in full in Appendix A.
55
Recommendation 1: the Majewski rule
3.35     There should be a general rule that:
(1)      if D is charged with having committed an offence as a perpetrator;
(2)      the fault element of the offence is not an integral fault element (for example, because it merely requires proof of recklessness);36 and
(3)      D was voluntarily intoxicated at the material time;
then, in determining whether or not D is liable for the offence, D should be treated as having been aware at the material time of anything which D would then have been aware of but for the intoxication.37
36   This is subject to one narrow exception, explained in paras 3.104 to 3.117 below.
37   New Criminal Law (Intoxication) Bill, cl 3(1) to (3). The integral fault elements not covered by the general rule are listed in cl 3(5). The position for insanity (and automatism) would continue to be governed by the common law; see paras 3.27 to 3.31 above and cl 9(4) of the new Criminal Law (Intoxication) Bill.
38   Paragraphs 3.46 and 3.104 below.
39   It is possible, but not likely, that the subjective fault requirement of an offence may be defined in terms of “likelihood” or “foresight of a probability”. If so, any such state of mind would also be covered by the general rule on the ground that it does not fall within the exhaustive list of integral fault elements (cl 3(5)).
40   Paragraph 1.12(4) above
41   Paragraph 1.12(7) above.
56
the best way of codifying the present law, whilst avoiding the problems inherent in the present distinction between offences of specific and of basic intent, is to confine the Majewski principle, broadly speaking, to offences for which proof of recklessness (or awareness of risk) is sufficient. ... it has the advantages of simplicity and clarity, both matters of great importance in any system of criminal law.45
the jury would be directed to disregard [D’s] lack of awareness only to the extent that it was caused by the intoxication rather than [for example] illness. This approach has the merit of ensuring that [D] would not be penalised in so far as his condition was caused by matters other than the intoxication.46 ... we were persuaded by our consultation that, so far as can be known, juries have no difficulty with this hypothetical question.47 Furthermore ... [it] is the question that in principle the jury ought
to address.48
42   Insofar as the test has survived the decision of the House of Lords in G [2003] UKHL 50, [2004] 1 AC 1034 (see fn 27 in Part 1, above).
43   Where the definition of a fault element refers to, or requires reference to, the state of mind or conduct to be expected of a reasonable person, such person is one who is not intoxicated to any extent. Our new draft Criminal Law (Intoxication) Bill does not provide for this situation because it is unnecessary to do so. The Bill provides rules for the situation where D’s liability requires proof of a “fault element which depends upon D’s state of mind” (cl 1(1)(b)). The position for no-fault offences and negligence, and for Caldwell recklessness where D’s state of mind is irrelevant, continues to be covered by the common law.
44   This aspect of Caldwell recklessness is covered by the general rule in cl 3((3) of our new draft Criminal Law (Intoxication) Bill because D’s liability requires proof of a “fault element which depends upon D’s state of mind” (cl 1(1)(b)).
45   Legislating the Criminal Code: Intoxication and Criminal Liability (1995), Law Com No 229, paras 6.6 to 6.7.
46   Above, para 6.29 (emphasis in original).
47   Above, para 6.32.
48   Above, para 6.33 (emphasis in original).
57
Recommendation 2: the rule for integral fault elements
Recommendation 3: the integral fault elements
49   Paragraph 3.46 below.
50   See paras 2.2 to 2.10 above. See also White, “Offences of Basic and Specific Intent” [1989] Criminal Law Review 271, 272:
since proof of intent will always suffice for offences that can be committed recklessly, we cannot say that such offences are (always) ones of basic intent. What any such offence actually is in any particular instance will depend upon which type of [fault element] the prosecution seeks to prove.
51   Legislating the Criminal Code: Intoxication and Criminal Liability (1995), Law Com No 229, para 6.8.
52   New Criminal Law (Intoxication) Bill, cl 3(4) to (6).
58
(1)      intention as to a consequence;53
(2)      knowledge as to something;54
(3)      belief as to something (where the belief is equivalent to knowledge as to something);55
(4)      fraud; and
(5)      dishonesty.
(1)      it would be for the courts to decide, as a preliminary issue, what exactly that state of mind is; and
(2)      in reaching its decision as to the nature of the state of mind, the courts would be aware of the different rules which apply in cases of voluntary intoxication and the arguments which support or militate against the application of the general rule.
53   But not intention as to conduct.
54   But not knowledge as to a risk, which falls within the scope of subjective recklessness.
55   This is a belief amounting to a certainty or near-certainty that something was, is or will be the case (drawing in part on the concept of indirect intention explained in para 1.12(1) and fn 19 in Part 1 above).
56   Paragraphs 3.88 to 3.117.
59
Recommendation 4 (defences and mistaken beliefs)
intoxication.60
has been criticised.62
57   Paragraph 2.12 above.
58   We accept that the courts would probably adopt the latter interpretation, given the judgment in DPP v Kellet (1994) 158 JP 1138, para 2.12 above.
59   New Criminal Law (Intoxication) Bill, cl 5(3)(b). However, the position for insanity (and automatism) would continue to be governed by the common law; see paras 3.27 to 3.31 above and cl 9(4) of the new Criminal Law (Intoxication) Bill.
60   A Criminal Code for England and Wales: Report and Draft Criminal Code Bill (1989), Vol 2, para 8.42; Legislating the Criminal Code: Intoxication and Criminal Liability (1995), Law Com No 229, paras 7.9 to 7.12.
61   For the present law on this area, see paras 2.47 to 2.62 above.
62   Criticisms in the academic literature can be found in: H Milgate [1987] Cambridge Law Journal 381; JC Smith [1987] Criminal Law Review 706; F McAuley, “The Intoxication Defence in Criminal Law” (1997) 32 Irish Jurist 243; Smith and Hogan, Criminal Law (12th ed, 2008) at p 308; and JR Spencer, “Drunken Defence” [2006] Cambridge Law Journal 267.
60
by reason of intoxication, kills his victim in the mistaken belief that he is acting in self-defence has no defence; but [D] is entitled to an acquittal [in respect of murder] if the effect of his mistake ... induces him to believe he is killing ... an orangutang.63
63   F McAuley, “The Intoxication Defence in Criminal Law” (1997) 32 Irish Jurist 243, 265. A similar example was used in B Fisse (ed), Howard’s Criminal Law (5th ed, 1990) at pp 514 to 515:
Assume that D takes self-defensive action on the strength of an honest yet unreasonable belief that he is under vicious attack by V1, a person dressed in a gorilla suit but whom D believes to be a psychotic human assailant; V1 is killed. If D’s belief as to the situation confronting him must be reasonable he cannot successfully plead self-defence and will be liable for murder. Assume the same case except that D believes that he is under vicious attack by V2, a person also dressed in a gorilla suit but whom he believes to be a psychotic gorilla; V2 is killed. Although the belief is also unreasonable D is not liable for murder because he does not realise that he is using lethal force against a human being. In terms of culpability there seems to be no material distinction between these two situations.
64   See JR Spencer, “Drunken Defence” [2006] Cambridge Law Journal 267, 268: “If Hamlet, high on drugs, kills Polonius because he honestly but unreasonably believes the shape behind the arras is a rat, he has the benefit of his mistake and his crime is manslaughter at most … But if he does the same thing in the equally honest but unreasonable belief that Polonius is an assassin lurking there to kill him, his crime … is murder.”
61
where the jury are satisfied that the defendant was mistaken in his belief that any force or the force which he in fact used was necessary to defend himself and are further satisfied that the mistake was caused by voluntarily induced intoxication, the defence [of self-defence] must fail. We do not consider that any distinction should be drawn on this aspect of the matter between offences involving what is called specific intent, such as murder, and offences of so-called basic intent, such as manslaughter. Quite apart from the problem of directing a jury in a case such as the present where manslaughter is an alternative verdict to murder, the question of mistake can and ought to be considered separately from the question of intent.68
(1)      the situation where D1 intentionally kills another person (V1) in the mistaken belief that V1 is about to attack D1, where D1’s mistake is caused solely by his or her being drunk; and
(2)      the situation where D2 avoids liability for murder on the ground that he or she drunkenly mistook a person (V2) for an ape, and killed V2 for that reason.
65   O’Grady [1987] QB 995, O’Connor [1991] Criminal Law Review 135, Hatton [2005] EWCA Crim 2951, [2006] 1 Cr App R 16 (247).
68   [1987] QB 995, 999.
62
reaction?72
69   AP Simester, ‘Mistakes in Defence’ (1992) 12 Oxford Journal of Legal Studies 295, 309 (emphasis in original).
70   We accept, however, that the courts have concluded that a successful claim to self-defence means that D did not act with the fault required for liability, because the intention to kill or cause grievous bodily harm carries an additional implicit requirement of unlawfulness. That is to say, technically, the fault for murder is the intention to kill or cause serious harm unlawfully (see Williams (Gladstone) (1983) 78 Cr App R 276 and Beckford [1988] AC 130). But compare AP Simester, ‘Mistakes in Defence’ (1992) 12 Oxford Journal of Legal Studies 295. The thrust of Professor Simester’s article is that Williams (Gladstone) was wrongly decided in this respect because, in his view, by raising self-defence D is not asserting that a constituent element of the offence is lacking. Rather, D is raising a defence in relation to conduct which on the face of it constitutes an offence.
71   Criminal Justice and Immigration Act 2008, s 76(3).
72   A further complication has been introduced by s 76(7)(b) of the Criminal Justice and Immigration Act 2008, which may require the jury to be told, in deciding whether the degree of force used by D was reasonable, that “evidence of a person’s having only done what the person honestly and instinctively thought was necessary for a legitimate purpose constitutes strong evidence that only reasonable action was taken by that person for that purpose”.
63
effective criminal-law provisions to deter the commission of offences against the person backed up by law-enforcement machinery for the prevention, suppression and sanctioning of breaches of such provisions.77
73   See para 2.60 above.
74   Emphasis added.
75   McCann v United Kingdom (1995) App No 18984/91, para 147; Gul v Turkey (2002) App No 22676/93, 34 EHRR 28, para 76.
76   Osman v United Kingdom (1998) App No 23452/94, para 115.
77   Above.
64
is based on an honest belief which is perceived, for good reasons, to be valid at the time but which subsequently turns out
to be mistaken.79
78   For the common law rule, that D is entitled to rely on an honest mistake as to the facts when claiming he or she acted in self-defence, see Williams (Gladstone) (1983) 78 Cr App R 276 and Beckford [1988] AC 130. For the relevant Strasbourg jurisprudence, see, in particular, McCann v United Kingdom (1995) App No 18984/91, 21 EHRR 97, and Gul v Turkey (2002) App No 22676/93, 34 EHRR 28.
79   McCann v United Kingdom (1995) App No 18984/91, 21 EHRR 97, para 200; Gul v Turkey (2002) App No 22676/93, 34 EHRR 28, para 78.
65
Example 3A
D is voluntarily intoxicated and, on the way home from a public house, he encounters another man (V) rapidly approaching him. Because of his intoxicated state, D mistakenly believes he is about to be attacked, and so grabs a piece of piping and strikes V intending to cause V serious harm before he himself suffers such harm. V is killed by the blow. It was D’s intention to act lawfully in self-defence.
81   Graham [1982] 1 WLR 294, 300.
82   Letenock (1917) 12 Cr App R 221.
83   See paras 3.27 to 3.31 above and cl 9(4) of the new Criminal Law (Intoxication) Bill.
84   New Criminal Law (Intoxication) Bill, cl 5(2)(b) and (3)(b). Section 3(1) of the Criminal Law Act 1967 provides that a person “may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large”.
66
3.77 In determining D’s liability for murder, the jury must consider D’s actions in the circumstances as he would have understood them if he had not been voluntarily intoxicated. If D would not have made the same mistake if he had been sober, he would be liable for murder (because D killed V with the intention required for liability for murder). If it is plausible that D would have made the same mistake even if he had been sober, D would not be liable for murder (or manslaughter).
Example 3B
D is voluntarily intoxicated and, on the way home from a public house, he passes another man (V). Because of his intoxicated state, D mistakenly believes that V is criticising the appearance of his girlfriend and, provoked by the perceived slur, he grabs a piece of piping and strikes V intending to cause V serious harm. V is killed by the blow.
85   See, eg, Lambert [2001] UKHL 37, [2002] 2 AC 545 and Lang [2002] EWCA Crim 298 on s 28(2) and (3) of the Misuse of Drugs Act 1971.
86   Paragraph 3.35 above.
87   Paragraph 3.42 above.
88   New Criminal Law (Intoxication) Bill, cl 5(5). See also cl 8(1).
67
Recommendation 6 (negligence and no-fault offences)
89   [1981] 1 QB 527, paras 2.94 to 2.96 above.
90   It is an offence under s 1(1) to destroy or damage property belonging to another person.
91   D relied on s 5(2)(a), which provides a defence if D “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 ... ”. Section 5(3) provides that, for the purposes of s 5, “it is immaterial whether a belief is justified or not if it is honestly held”.
92   [1981] 1 QB 527.
93   Legislating the Criminal Code: Intoxication and Criminal Liability (1995), Law Com No 229, paras 7.17 and 7.18.
68
Example 3C
D is charged with common assault and dangerous driving on the ground that he or she deliberately drove at a person V. The defence claim that D drove at V because of a mistaken belief that V was about to attack Y and that, accordingly, D was acting lawfully in accordance with the common law defence of self-defence (including defence of another) and/or the equivalent statutory defence provided by section 3(1) of the Criminal Law
Act 1967.94
94   See fn 84 above.
95   New Criminal Law (Intoxication) Bill, cl 5(2)(b) and (3)(b). Clause 5 would operate in this type of case because, as a provision in Part 2 of the Bill, it applies generally and is not limited in its application to offences defined with a subjective fault element.
96   See fn 43 above.
69
Recommendation 7 (secondary liability generally)
(1)      if the offence is one which always requires proof of an integral fault element,100 then the state of mind required for D to be secondarily liable for that offence should equally be regarded as an integral fault element;
(2)      if the offence does not always require proof of an integral fault element,101 then the (Majewski) rule on voluntary intoxication should apply in determining D’s secondary liability for the offence.102
97   Accessories and Abettors Act 1861, s 8; Magistrates’ Courts Act 1980, s 44(1). The applicable rules determining D’s liability comprise the common law doctrine of secondary liability (fn 12 in Part 1 above).
98   The older authorities on the question, which should be binding, suggest that if D does not intend the commission of P’s offence there must be a requirement of “knowledge” (in reality a belief that P’s offence will be committed); see NCB v Gamble [1959] 1 QB 11, Johnson v Youden [1950] 1 KB 544 and Bainbridge [1960] 1 QB 129. However, recent case law provides a degree of support for the proposition that the test is one of contemplation (eg, Blakely and Sutton v DPP [1991] RTR 405, 414 (“would, or might”) and Webster [2006] EWCA Crim 415 (“likely to”)). See generally Law Com No 305 (2007), Participating in Crime, pp 206 to 211.
99   Paragraph 2.98 above.
100  As opposed to an offence such as battery, which may be committed intentionally or recklessly.
101  For example, battery, which may be committed intentionally or recklessly.
102  New Criminal Law (Intoxication) Bill, cl 4.
70
103  Paragraph 3.46(2) and (3) above.
104  New Criminal Law (Intoxication) Bill, cl 4(4) and (5).
105  Paragraph 1.13(1) above.
106  New Criminal Law (Intoxication) Bill, cl 4(3).
71
Recommendation 8 (secondary liability – joint enterprises)
3.99     Our proposed rule on the relevance of voluntary intoxication to secondary
liability generally should apply equally to cases of alleged joint enterprise.110
3.100 We have already explained that the Chan Wing Siu state of mind required for secondary liability in cases of joint enterprise, where D did not intend that the offence committed by P should be committed, is superficially similar to the concept of subjective recklessness.111 This is because both culpable states of mind require the foresight of a possible eventuality which does not deter D from pursuing his or her hazardous conduct. If the Chan Wing Siu state of mind were to be regarded as a form of recklessness, D could be liable for murder committed by P on the basis that he or she did not foresee the possibility that P would commit murder but would have done if he or she had not been voluntarily
intoxicated.112
107  A permissible direction because the liability of a perpetrator and an accessory is the same. They are both guilty of the offence and liable to be punished to the same extent; see Giannetto [1997] 1 Cr App R 1.
108  A problem might arise, exceptionally, if the prosecution were to frame the allegation of perpetrating an offence such as battery with reference to intention alone, but this is extremely unlikely.
109  D may be convicted of an offence committed by P even if P is never found or prosecuted.
110  New Criminal Law (Intoxication) Bill, cl 4. Clause 4 does not draw any distinction between the ways in which D may be secondarily liable for an offence perpetrated by P.
111  See paras 2.98 to 2.101 above.
112  The trial judge’s summing up in English [1999] 1 AC 1 (p 27) suggests that the jury were directed to take D’s intoxicated state of mind into account as a factor bearing on his secondary liability for murder, indicating that some judges already regard the Chan Wing Siu state of mind as a “specific intent” if it relates to an offence of “specific intent”.
72
Recommendation 9 (inchoate liability)
113  Paragraph 3.97.
114  This may already be the law; see fn 112 above.
115  New Criminal Law (Intoxication) Bill, cl 3(5)(e) and (6).
116  The relevant provisions came into force on 1 October 2008; see The Serious Crime Act 2007 (Commencement No 3) Order 2008 (SI 2008 No 2504).
117  Sections 44 to 46.
118  Section 44.
119  Principally s 45 (but also s 46).
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3.106 These offences are inchoate offences. This means that, unlike the situation where the doctrine of secondary liability arises, D may be liable for encouraging or assisting a crime even if the crime in question is never committed and even if no-one other than D intended that it should be committed. Where D faces an allegation under section 45 (or section 46) that he or she encouraged or assisted a crime in the belief that it would be committed, it may be the case that the crime was never committed and that no-one, not even D, intended that it should be committed. Nevertheless, it must always be proved that D did an act (or failed to exercise a duty to act) which had the capacity to encourage or assist the commission of the relevant crime.
Example 3D
D provides P with a knife believing that P will use it to attack V.
120  For ease of exposition, reference is made here to another person “P”, but the legislation does actually not require that D had a particular individual in mind.
121  Section 47(3).
122  Section 47(5)(a).
123  Section 47(5)(b).
124  See s 47(5)(a)(ii) and (b)(ii).
74
(1)      the substantive offence was never committed;
(2)      no harm was ever caused;
(3)      no-one ever intended that the offence should be committed; and
(4)      the basis of D’s liability (other than D’s belief that P would commit the conduct element with his or her assistance) is an imputed belief as to the possibility of fault (on the part of P) and/or the consequence and/or circumstance elements (relating to P’s conduct).
125  Compare the doctrine of secondary liability (Part 1, fn 12 above). Broadly speaking this doctrine requires that P, the perpetrator, committed the relevant offence with D’s actual encouragement or assistance.
126  New Criminal Law (Intoxication) Bill, cl 3(3).
127  D is an alleged perpetrator, as opposed to a secondary party, if charged with an offence under the 2007 Act, although his or her liability is inchoate.
75
Act.130
128  Paragraphs 2.99 to 2.100 above.
129  Paragraphs 3.92 to 3.103 above.
130  This could happen if the relevant substantive offence was committed by P but it was unclear whether D’s conduct provided P with actual encouragement or assistance.
131  Law Com Consultation Paper No 183 (2007), Conspiracy and Attempts.
132  Above, paras 14.42 to 14.43.
76
RECOMMENDATIONS (2) – INVOLUNTARY INTOXICATION Specific recommendations
Recommendation 10 (the general rule)
3.121     D’s state of involuntary intoxication should be taken into consideration:
(1)      in determining whether D acted with the subjective fault required for liability, regardless of the nature of the fault element;134 and
(2)      in any case where D relies on a mistake of fact in support of a defence to which his or her state of mind is relevant.135
law.136
133  Above, para 4.113.
134  New Criminal Law (Intoxication) Bill, cl 2.
135  New Criminal Law (Intoxication) Bill, cl 5(3)(a).
136  New Criminal Law (Intoxication) Bill, cl 9(4).
137  Paragraph 3.25 above.
138  In our new Criminal Law (Intoxication) Bill two situations are listed as “examples” on the ground that they are indeed obvious examples of involuntary intoxication (see cl 6(4)). Two other situations are listed separately (in cl 6(5)) because they are more akin to policy-driven rules than “examples”.
77
Example 3E
D’s only pint of beer is surreptitiously laced with a hallucinogenic drug. If the self-induced aspect of D’s state of intoxication was insignificant when compared with the extent to which D was involuntarily intoxicated then D would be regarded as involuntarily intoxicated.
139  New Criminal Law (Intoxication) Bill, cl 6(1) and (2).
140  New Criminal Law (Intoxication) Bill, cl 6(3).
141  New Criminal Law (Intoxication) Bill, cl 6(4)(a).
142  New Criminal Law (Intoxication) Bill, cl 6(4)(b).
143  New Criminal Law (Intoxication) Bill, cl 6(5)(a).
144  New Criminal Law (Intoxication) Bill, cl 6(5)(b).
145  New Criminal Law (Intoxication) Bill, cl 6(1).
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(1)      advice given by a suitably qualified person (such as a general practitioner
or pharmacist);147 and/or
(2)      the instructions accompanying the medicine or drug (such as a printed
leaflet).148
146  Legislating the Criminal Code: Intoxication and Criminal Liability (1995), Law Com No 229, paras 8.9 to 8.35. See also s 6(5) of the Public Order Act 1986.
147  New Criminal Law (Intoxication) Bill, cl 6(6)(a). Spurious advice given by an unqualified friend or colleague (or an unqualified medical practitioner) would not therefore be covered.
148  New Criminal Law (Intoxication) Bill, cl 6(6)(b).
149  Paragraphs 2.85 to 2.86 above (and see also fn 39 in Part 1 above).
150  New Criminal Law (Intoxication) Bill, cl 6(6)(c).
79
Example 3F
D, a diabetic, takes a dose of insulin but fails to consume some food (as previously instructed by his doctor and/or the instructions accompanying the insulin), and thereby falls into a hypoglycaemic state during which D commits the external element of an offence requiring proof of subjective recklessness (contemplation of a risk). If D did not contemplate the risk D would otherwise have contemplated, D could be liable for the offence on the basis of being in a state of voluntary intoxication. However, D would be convicted on that basis only if D’s conduct in not consuming sufficient food, contrary to the medical advice received or the instructions accompanying the insulin, was unreasonable in the circumstances.
3.135 Diabetes UK has indicated to us just how important it is not to treat diabetics who fail to maintain a normal blood glucose level through mismanagement of their condition as voluntarily intoxicated. The organisation said to us:
The maintenance of near normal blood glucose is very difficult – some people manage it better than others. It requires doses of insulin or hypoglycaemic agents to be matched with food taken and activity. This will vary from person to person and according to different situations, for example stress or illness. Diabetes management is a balancing act between food intake, exercise, medication and life circumstances. There are so many variables that need to be taken into account that a person on insulin is inevitably going to have blood glucose levels above or below the normal range…
151 New Criminal Law (Intoxication) Bill, cl 7(4).
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RECOMMENDATIONS (3) – EVIDENCE AND PROOF
Additional specific recommendations
Recommendation 12 (prosecution alleges that D was intoxicated)
(1)      there should be a presumption that D was not intoxicated at the material time;
(2)      it should be for the prosecution to prove (beyond reasonable doubt) that D was intoxicated at the material time;
(3)      if it is proved (or admitted) that D was intoxicated, there should be a presumption that D was voluntarily intoxicated;
(4)      if D contends that he or she was involuntarily intoxicated, it should be for D to prove it (on the balance of probabilities).
Recommendation 13 (D claims he or she was intoxicated)
3.139     If D claims that he or she was intoxicated at the material time:154
(1)      there should be a presumption that D was not intoxicated at the material time;
(2)      D should bear an evidential burden in support of the claim that he or she was intoxicated at the material time;155
152  Paragraph 3.133 above.
153  Because the offence, as alleged, requires proof of mere recklessness (or some other state of mind which is not an integral fault element).
154  Because the prosecution are required to prove an integral fault element or D contends that he or she was involuntarily intoxicated.
155  Given that the burden of proving that D was not intoxicated would lie with the prosecution (para 3.139(3) below) D would merely have to show there is admissible evidence suggesting intoxication as a plausible possibility.
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(3)      if D’s evidential burden is discharged (and the prosecution wishes to contend that D was not intoxicated), the prosecution should have to prove (beyond reasonable doubt) that D was not intoxicated;
(4)      if D is taken to have been intoxicated, there should be a presumption that D was voluntarily intoxicated;
(5)      if D contends that he or she was involuntarily intoxicated, it should be for D to prove it (on the balance of probabilities).
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THE HUMAN RIGHTS ACT 1998
(1) that D acted with the integral fault element alleged; or
157  “Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”
158  See para 3.133 above.
159  See para 3.145 above.
160  Clause 7(4).
83
(2) if recklessness is alleged, and the presumption of voluntary intoxication applies, that D would have been aware of the relevant circumstances or risks if D had not been intoxicated.
161  (1995) App No 20166/92.
162  Above, para 34.
163  Above, para 35.
164  Above, para 36.
165  See Clark [2003] EWCA Crim 991, [2003] 2 Cr App R 23 (364).
84
elements.167
FINAL COMMENT
In practical terms ... the changes we propose would … have the great merit of making the law consistent, coherent and much easier to apply, in cases where at present it is uncertain.168
166  New Criminal Law (Intoxication) Bill, cl 3(4) and (5).
167  New Criminal Law (Intoxication) Bill, cl 3(3).
168  Legislating the Criminal Code: Intoxication and Criminal Liability (1995), Law Com No 229, para 9.26.
169  Appendix A.
170  New Criminal Law (Intoxication) Bill, cl 9(4).
85
PART 4
INVOLUNTARY INTOXICATION AND
CULPABILITY
(1)      D’s state of involuntary intoxication reduced D’s inhibitions to such an extent that, although D was acting voluntarily and with the required fault, he or she could not resist the temptation to commit the offence charged; or
(2)      D’s state of involuntary intoxication blurred D’s moral vision to the extent that, although D acted with the required fault, appreciated what he or she was doing and could have acted otherwise, D did not appreciate the true moral gravity of his or her behaviour.
him by his co-accused.3
2    [1994] QB 81.
3    As pointed out by the Court of Appeal in Sheehan [1975] 1 WLR 739, 744: “A drunken intent is nevertheless an intent.”
86
4.6 Lord Mustill set out their Lordships’ reasons for rejecting a general excuse of irresistible impulse, caused by involuntary intoxication, as follows:4
(1)      the existence of such a defence would be inconsistent with the common law position that an irresistible impulse having an internal origin (for which D is similarly not responsible) provides no defence if D acted with the required fault;
(2)      as a general defence available in respect of any offence, except perhaps offences not requiring fault, D would be able to avoid all liability, regardless of the seriousness of the offence;5
(3)      the defence would be inherently subjective, the sole question being whether D’s inhibitions were in fact overcome by the drug;6
(4)      the defence would give rise to significant forensic problems, in that the jury would need to hear evidence of D’s susceptibilities, and expert evidence would need to be called on the disinhibiting effect of a (quite possibly unknown) drug, or range of drugs, on those susceptibilities;
(5)      the defence would be easy to manufacture but difficult for the Crown to disprove; and
(6)      the involuntary nature of D’s intoxication may be taken into consideration by the court as a mitigating factor when sentencing D for the offence he or she committed.
4    [1995] 2 AC 355, 376 and 377.
5    The courts could, however, provide that the excuse is no defence to some of the most serious crimes, by analogy with the defence of duress.
6    Compare other excusatory defences, where reference is made to the reasonable person (albeit with D’s relevant characteristics).
7    See Legislating the Criminal Code: Intoxication and Criminal Liability (1995), Law Com No 229, pp 2 and 3.
87
4.9 If created, a defence of reduced inhibitions or blurred moral vision would be relied on by D only in cases where it has been proved to the criminal standard that D committed the external element of the offence charged with the required fault. In our view, however, reduced inhibitions or blurred moral vision should have the effect, to a greater or lesser extent, of simply reducing the degree of blame that can be attached to D. In other words, evidence of involuntary intoxication in such cases should operate in the same way as do many (other) mitigating factors which were beyond D’s power to control, such as a violent upbringing giving rise to an inability to control angry outbursts. With any like factor, D’s involuntary intoxication may well justify a reduced sentence should he or she be convicted of an offence.
8    [1994] QB 81, 89. According to the Court of Appeal, at p 89: “The law permits a finding that the intent formed was not a criminal intent or, in other words, that the involuntary intoxication negatives the fault element.”
9    Above.
10   GR Sullivan, “Making Excuses”, Simester and Smith (eds) Harm and Culpability, p 131. Sullivan suggests an excusatory defence of involuntary intoxication for those of previous good character who have committed offences which do not involve death, serious injury or penetrative sexual acts.
88
11   Successful reliance on this partial defence to murder results in liability for voluntary manslaughter and a discretionary life sentence.
12   Kingston [1995] 2 AC 355, 377, by Lord Mustill.
13   We do acknowledge, however, that it would be open to the Crown to explain to the jury that D’s character evidence may be unreliable because of his or her personal relationship with the witnesses.
89
14 It may be possible to rely on diminished responsibility as a partial (mitigating) defence if the allegation is murder.
90
15   For example, the involuntarily intoxicated paedophile who has committed an act of gross indecency against a young child would not be liable for his offence, notwithstanding the harm caused to the victim and proof of fault, but the child’s mother, who found the paedophile in the act of committing the offence, and caused him serious non-fatal injuries as a result of her sudden and temporary loss of self control, would be liable for her very serious offence.
16   Kingston [1995] 2 AC 355, 377.
91
PART 5
SUMMARY OF RECOMMENDATIONS
VOLUNTARY INTOXICATION
Recommendation 1: the Majewski rule
5.1     There should be a general rule that
(1)      if D is charged with having committed an offence as a perpetrator;
(2)      the fault element of the offence is not an integral fault element (for example, because it merely requires proof of recklessness); and
(3)      D was voluntarily intoxicated at the material time;
then, in determining whether or not D is liable for the offence, D should be treated as having been aware at the material time of anything which D would then have been aware of but for the intoxication.
[paragraph 3.35]
Recommendation 2: the rule for integral fault elements
[paragraph 3.42]
Recommendation 3: the integral fault elements
(1)      intention as to a consequence;
(2)      knowledge as to something;
(3)      belief as to something (where the belief is equivalent to knowledge as to something);
(4)      fraud; and
(5)      dishonesty.
[paragraph 3.46]
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Recommendation 4 (defences and mistaken beliefs)
[paragraph 3.53]
Recommendation 5 (“honest belief” provisions)
[paragraph 3.80]
Recommendation 6 (negligence and no-fault offences)
[paragraph 3.84]
Recommendation 7 (secondary liability generally)
(1)      if the offence is one which always requires proof of an integral fault element, then the state of mind required for D to be secondarily liable for that offence should equally be regarded as an integral fault element;
(2)      if the offence does not always require proof of an integral fault element, then the (Majewski) rule on voluntary intoxication should apply in determining D’s secondary liability for the offence.
[paragraph 3.92]
Recommendation 8 (secondary liability – joint enterprises)
[paragraph 3.99]
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Recommendation 9 (inchoate liability)
5.9 If D is charged under Part 2 of the Serious Crime Act 2007 with an offence of encouraging or assisting another person to commit a crime (“the crime”), then if the crime is one which would always require proof of an integral fault element for a perpetrator to be liable, and the allegation against D requires the prosecution to prove that D was “reckless” for the purposes of section 47(5) of the Act, the state of mind of being “reckless” should be treated as an integral fault element.
[paragraph 3.104]
INVOLUNTARY INTOXICATION
Recommendation 10 (the general rule)
5.10     D’s state of involuntary intoxication should be taken into consideration:
(1)      in determining whether D acted with the subjective fault required for liability, regardless of the nature of the fault element; and
(2)      in any case where D relies on a mistake of fact in support of a defence to which his or her state of mind is relevant.
[paragraph 3.121]
Recommendation 11 (species of involuntary intoxication)
(1)      the situation where an intoxicant was administered to D without D’s consent;
(2)      the situation where D took an intoxicant under duress;
(3)      the situation where D took an intoxicant which he or she reasonably believed was not an intoxicant;
(4)      the situation where D took an intoxicant for a proper medical purpose.
[paragraphs 3.125–3.126]
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EVIDENCE AND PROOF
Recommendation 12 (prosecution alleges that D was intoxicated)
(1)      there should be a presumption that D was not intoxicated at the material time;
(2)      it should be for the prosecution to prove (beyond reasonable doubt) that D was intoxicated at the material time;
(3)      if it is proved (or admitted) that D was intoxicated, there should be a presumption that D was voluntarily intoxicated;
(4)      if D contends that he or she was involuntarily intoxicated, it should be for D to prove it (on the balance of probabilities).
[paragraph 3.138]
Recommendation 13 (D claims he or she was intoxicated)
(1)      there should be a presumption that D was not intoxicated at the material time;
(2)      D should bear an evidential burden in support of the claim that he or she was intoxicated at the material time;
(3)      if D’s evidential burden is discharged (and the prosecution wishes to contend that D was not intoxicated), the prosecution should have to prove (beyond reasonable doubt) that D was not intoxicated;
(4)      if D is taken to have been intoxicated, there should be a presumption that D was voluntarily intoxicated;
(5)      if D contends that he or she was involuntarily intoxicated, it should be for D to prove it (on the balance of probabilities).
[paragraph 3.139]
(Signed) TERENCE ETHERTON, Chairman
ELIZABETH COOKE
DAVID HERTZELL
JEREMY HORDER
KENNETH PARKER
WILLIAM ARNOLD, Chief Executive 4 December 2008
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96
Appendix A - Draft Criminal Law (Intoxication) Bill and Notes
CONTENTS
Part 1
Voluntary and involuntary intoxication: basic rules
1    Application and interpretation of Part 1
2    Involuntary intoxication
3    Voluntary intoxication: liability of perpetrator
4    Voluntary intoxication: secondary liability
Part 2
Other provisions
5    Mistaken beliefs and intoxication
6    Meaning of voluntary and involuntary intoxication
7    Presumptions and proof
8    Consequential amendments and repeal
9    Citation, commencement, application and extent
97
Criminal Law (Intoxication) Bill
Part 1 — Voluntary and involuntary intoxication: basic rules
1
DRAFT OF A
BILL
TO
Make provision, subject to certain exceptions, about the effect of intoxication on criminal liability.
B E IT ENACTED by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—
1
Part 1
Voluntary and involuntary intoxication: basic rules
Application and interpretation of Part 1
(1)    This Part applies where—
(a)    there are proceedings against a person (“D”) for an offence,
(b)    D’s liability for it requires proof of a fault element which depends upon D’s state of mind,
(c)    it is alleged that the fault element was present at any material time, and
(d)    at that time D was intoxicated.
(2)    In subsection (1), references to a fault element include any fault element which the prosecution must prove (regardless of how the offence is defined), except one which arises when either of the following issues is raised—
(a)    whether or not D is entitled to rely on the common law defence of self-defence,
(b)    whether or not D used reasonable force for the purposes of section 3(1) of the Criminal Law Act 1967 (c. 58) (use of force in making arrest etc.).
(3)    In this Part—
(a)    “D” is the person referred to in subsection (1),
(b)    “the allegation” means the allegation referred to in subsection (1)(c),
(c)    references to acts, and related expressions, include omissions and similarly related expressions.
98
EXPLANATORY NOTES
A.1 The Draft Bill, which would extend to England and Wales only,1 is divided into two Parts:
•     Part 1 applies only if the accused (“D”) is charged with an offence, either as a perpetrator or as an accessory, and the prosecution has to prove that D acted with a requirement of subjective fault. (Part 1 comprises clauses 1 to 4.)
•     Part 2 applies generally, so it also covers the situations where D is charged with an offence requiring proof of objective fault or an offence which does not require proof of any fault. (Part 2 comprises clauses 5 to 9.)
Clause 1
A.2 Clause 1(1) provides that in any case where D is charged with an offence, and the prosecution has to prove that D acted with subjective fault (“a fault element which depends upon D’s state of mind”)2 to be convicted of it, then, if D was intoxicated at the time he or she allegedly committed the offence, the applicable provisions of Part 1 apply.3
A.3 Clause 1(2) provides that in determining whether the offence is one to which Part 1 applies the concept of subjective fault encompasses any culpable state of mind which the prosecution has to prove for D to be convicted.
A.4 It does not matter, therefore, whether:
•     the offence has been expressly defined with reference to the culpable state of mind as a fault element to be proved by the prosecution, or
•     the courts have held that a “defence” of no culpable state of mind is to be interpreted as a fault requirement to be proved by the prosecution (once D has discharged a mere evidential burden on the absence of such fault).4
A.5 Clause 1(2) also provides, however, that the defences in paragraphs (a) and (b) (the common law defence of self-defence and the similar defence in section 3(1) of the Criminal Law Act 1967) are not to be treated as a denial of the fault element, regardless of the theoretical position.5 They are to be treated as “defences” covered by clause 5.6
1    Save that one consequential amendment also extends to Northern Ireland; see clause 9(6) which must be read with clauses 8(3) and 9(5).
2    Clause 1(1)(b).
3    Clause 2 governs the situation where D’s intoxication was involuntary. Clauses 3 and 4 govern the situation where D’s intoxication was voluntary. Clause 3 applies if D is an alleged perpetrator. Clause 4 applies if D is an alleged accessory. Clause 6 provides the meaning of voluntary intoxication and involuntary intoxication. Clause 7 sets out a number of rules and presumptions relating to the question whether or not D was intoxicated and, if so, whether or not D’s state of intoxication was voluntary or involuntary.
4    See, eg, Lambert [2001] UKHL 37, [2002] 2 AC 545 on s 28 of the Misuse of Drugs Act 1971.
5    Strictly speaking, if D successfully relies on self-defence (or s 3(1) of the Criminal Law Act 1967), D is regarded as having acted without the subjective fault element required for liability.
6    See clause 5(2)(b).
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2                                                                                               Criminal Law (Intoxication) Bill
Part 1 — Voluntary and involuntary intoxication: basic rules
2 Involuntary intoxication
If D’s intoxication was involuntary, evidence of it may be taken into account in determining whether the allegation has been proved.
100
EXPLANATORY NOTES
Clause 2
A.6 Clause 2 sets out the rule that, in any case where the prosecution has to prove that D acted with an element of subjective fault to be liable for the offence charged, D’s state of involuntary intoxication is to be taken into account in determining whether D acted with that state of mind.
A.7 In other words, if D did not act with the required subjective fault on account of being involuntarily intoxicated, then D is not liable for the offence charged.
101
Criminal Law (Intoxication) Bill                                                                                              3
Part 1 — Voluntary and involuntary intoxication: basic rules
3 Voluntary intoxication: liability of perpetrator
(1)    This section applies unless the proceedings against D are for aiding, abetting, counselling or procuring the commission of an offence (for which see section 4).
(2)    This section applies only if D’s intoxication was voluntary.
(3)    Where this section applies, the general rule is that in determining whether the allegation has been proved, D is to be treated as having been aware at the material time of anything which D would then have been aware of but for the intoxication.
(4)    There are five cases in which the general rule does not apply: in those cases, evidence of D’s intoxication may be taken into account in determining whether the allegation has been proved.
(5)    The five cases are that the allegation is, in substance, that at the material time—
(a)    D intended a particular result (but this does not include merely intending to do the acts which constitute the conduct element of the offence),
(b)    D had any particular knowledge as to something (but this does not include knowledge as to a risk),
(c)    D had a particular belief, amounting to certainty or near-certainty, that something was then, had been, or would in future be, the case,
(d)    D acted fraudulently or dishonestly,
(e)    D was reckless for the purposes of subsection (5)(a)(ii) or (b)(ii) of section 47 of the Serious Crime Act 2007 (c. 27) (concerning proof for the purposes of that section that an act is one which, if done by another person, would amount to the commission of an offence by that other person).
(6)    Paragraph (e) of subsection (5) applies only if liability for the offence mentioned in that paragraph would (if there were proceedings against the other person for it) require proof of an allegation against that person which is of any kind mentioned in paragraphs (a) to (d) of that subsection.
102
EXPLANATORY NOTES
Clause 3
A.8 Clause 3(1) and (2) provides that clause 3 applies if D’s state of intoxication was voluntary and it is alleged that D perpetrated the offence charged. Clause 3(3) then sets out the general rule for such cases: D is to be treated as having been aware of anything D would have been aware of if D had not been intoxicated. There are several exceptions to this general rule7 and these are listed in clause 3(5).
A.9 Save for one specific proviso,8 the fault element of recklessness is not included within clause 3(5), so subjective recklessness is governed by the general rule set out in clause 3(3): D is to be treated as if D had been aware of any risk D would have been aware of if D had not been intoxicated.
A.10 Clause 3(5) lists the types of subjective fault element which, if in issue, must always be proved by the prosecution, whether or not D was voluntarily intoxicated.9 Paragraphs (a) to (d) list the following subjective fault elements: intention as to a result; knowledge as to something (other than a risk); belief amounting to certainty or near certainty as to something; fraud; and dishonesty. Paragraph (e), which must be read with clause 3(6), provides that the fault element of recklessness in section 47 of the Serious Crime Act 2007 is to be treated in the same way.
A.11 However, clause 3(6) sets out a special rule for the situation where the prosecution must prove that D acted recklessly for the purposes of section 47 of the Serious Crime Act 2007, where it is alleged that D encouraged or assisted the commission of another offence (“the offence mentioned in [paragraph (e)]”). The state of mind covered by the term “reckless” in this specific context is to be regarded as a fault element which must always be proved, rather than a fault element covered by the general rule in clause 3(3), but only if the offence mentioned in paragraph (e) is an offence which always requires proof of a state of mind falling within clause 3(5)(a) to (d).
A.12 Thus, if D is charged under the 2007 Act with encouraging or assisting murder and the prosecution alleges “recklessness” (within section 47), the prosecution must prove that D was indeed reckless.10 But if D is charged with encouraging or assisting a battery, then an allegation of recklessness (within section 47) is governed by the general rule in clause 3(3).11
7    See clause 3(4).
8    Clause 3(5)(e) and (6).
9    Clause 3(4) provides that “evidence of D’s [voluntary] intoxication may be taken into account in determining whether the allegation has been proved”.
10   This is because the intention to kill or cause grievous bodily harm must always be proved if a person is charged with perpetrating murder (see clause 3(5)(a)).
11   This is because battery can be committed intentionally or recklessly.
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4                                                                                               Criminal Law (Intoxication) Bill
Part 1 — Voluntary and involuntary intoxication: basic rules
4 Voluntary intoxication: secondary liability
(1)    This section applies if the proceedings against D are (whatever expression is used) for aiding, abetting, counselling or procuring the commission of an offence by another person (“P”).
(2)    This section applies only if D’s intoxication was voluntary.
(3)    Where this section applies, the general rule is that in determining whether the allegation has been proved, D is to be treated as having been aware at the material time of anything which D would then have been aware of but for the intoxication.
(4)    There is one case in which the general rule does not apply: in that case, evidence of D’s intoxication may be taken into account in determining whether the allegation has been proved.
(5)    The one case is that liability for the offence which D is said to have aided, abetted (etc.) would (if there were proceedings against P for it) require proof of an allegation against P which is of any kind mentioned in section 3(5)(a) to (d).
(6)    For the purposes of subsection (3) it does not matter—
(a)    whether the offence which D is said to have aided, abetted (etc.) has a fault element at all, or
(b)    if it does, what sort of fault element it is.
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EXPLANATORY NOTES
Clause 4
A.13 Clause 4(1) and (2) provides that clause 4 applies if D’s state of intoxication was voluntary and it is alleged that D is liable for the offence charged as an accessory. In other words, it is alleged that D is liable for an offence committed by a perpetrator (P) by the application of the general doctrine of secondary liability, or pursuant to a specific statutory provision, on the ground that D aided, abetted, counselled, or procured the commission of P’s offence.12 It is to be noted that no distinction is drawn between the general doctrine of secondary liability and the particular rules which apply to joint enterprises. All cases of alleged secondary liability are governed by clause 4. As explained above, however, the situation where D is charged with having encouraged or assisted the commission of another offence under Part 2 of the Serious Crime Act 2007 is governed by clause 3.13
A.14 Clause 4(3) sets out the general rule that D is to be treated as having been aware of anything which D would have been aware of if D had not been intoxicated.
A.15 By virtue of clause 4(4) and (5), however, a different rule applies if the offence committed by P is one which always requires proof of a culpable state of mind (on the part of P) falling within clause 3(5)(a) to (d). For offences of this sort, such as murder, the culpable state of mind required (on the part of D), to be convicted of P’s offence as an accessory, is to be treated as a fault element which must always be proved. Where this rule applies, evidence of D’s (voluntary) intoxication is to be taken into account in determining whether or not D acted with the required state of mind.14
A.16 Thus, if the offence committed by P is battery, which may be committed by P intentionally or recklessly, P’s liability is to be established with reference to the general rule in clause 3(3). Equally, if D is charged with battery on the basis of the doctrine of secondary liability, the state of mind the prosecution must prove that D acted with is not to be regarded as an integral fault element. The same general rule applies to D by the application of clause 4(3).
A.17 If, however, it is alleged that D was an accessory to murder, an offence which always requires proof of an intention to kill or cause grievous bodily harm, then the general rule in clause 4(3) does not apply.15 D can be convicted of murder only if D acted with the state of mind required by the doctrine of secondary liability to be liable for P’s murder.
A.18 Clause 4(6) simply provides that the general rule in clause 4(3) extends to the situation where it is alleged that D is secondarily liable for an offence (committed by P) which does not require proof of subjective fault. This provision has been included because, under the doctrine of secondary liability, the prosecution may have to prove that D acted with subjective fault, in which case clause 4(3) applies, even though the offence committed by P has a requirement of objective fault or does not require proof of any fault.
12   With regard to the general doctrine of secondary liability, see s 8 of the Accessories and Abettors Act 1861 and s 44 of the Magistrates’ Courts Act 1980. However, clause 4(1) is not limited to the situations where one of these provisions is relied on. This is because a number of other provisions provide, in effect, that D can be convicted of an offence on the basis that he or she encouraged or assisted the perpetrator to commit it, and the formula used may not follow the “aid, abet, counsel or procure” wording of the general provisions. See, for example, s 7(1) of the Perjury Act 1911.
13   Liability under Part 2 of the Serious Crime Act 2007 is not secondary liability for an offence committed by another person but primary liability for an offence committed by D.
14   Clause 4(4). This rule for secondary liability is therefore the same as the rule under clause 3(5)(e) and (6) for some cases where it is alleged that D encouraged or assisted an offence under Part 2 of the Serious Crime Act 2007.
15   Clause 4(4) and (5), read with clause 3(5)(a).
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Criminal Law (Intoxication) Bill Part 2 — Other provisions
5
Part 2
Other provisions
5 Mistaken beliefs and intoxication
(1)    This section applies if—
(a)    there are proceedings against a person (“D”) for any offence,
(b)    D was at any material time intoxicated, and
(c)    by way of defence, or in support of a defence, D relies on having at that time held a particular belief as to any fact.
(2)    In this section, “defence”—
(a)    does not include anything which, if raised as an issue, imposes the burden of proving a fault element falling within section 1(1) on the prosecution, but
(b)    does include the defences referred to in section 1(2)(a) and (b).
(3)    In determining D’s liability for the offence—
(a)    if D’s intoxication was involuntary, D’s actual belief, whether mistaken or not, is to be taken into account, but
(b)    if D’s intoxication was voluntary, D’s actual belief is to be taken into account only if D would have held the same belief if not intoxicated.
(4)    If evidence is adduced which is sufficient to raise an issue to the effect that D would have held the same belief if not intoxicated, it is to be taken that D would have held that belief unless the prosecution proves beyond reasonable doubt that D would not.
(5)    Any enactment or provision of subordinate legislation (whatever its terms) by virtue of which the holding of a particular belief provides, or supports, a defence to a criminal charge has effect subject to this section.
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EXPLANATORY NOTES
Clause 5
A.19 Clause 5 sets out the position for mistakes induced by intoxication where D’s state of mind is relevant to a defence:16
•     If D’s mistake was induced by involuntary intoxication, then D is to be judged according to his or her mistaken understanding of the facts (clause 5(3)(a));17
•     If D’s mistake was induced by voluntary intoxication, then D may rely on that mistaken belief only if D would have made the same mistake if D had not been intoxicated (clause 5(3)(b)).
A.20 Importantly, no distinction is drawn in clause 5(3)(b) between offences requiring proof of a clause 3(5) state of mind and other offences. Thus, in line with the position at common law and section 76(5) of the Criminal Justice and Immigration Act 2008, D may rely on a mistake as to the facts in support of the defence of self-defence only if D would have made the same mistake if he or she had been sober, even if the definition of the offence charged requires proof of a fault element falling within clause 3(5).18
A.21 It is also to be noted that, as a provision in Part 2, clause 5 applies generally. It is not limited to the situation where the prosecution has to prove that D acted with subjective fault to be liable for the offence charged. Clause 5 applies, therefore, if D wishes to rely on a defence (to which D’s state of mind is relevant) to avoid being convicted of an offence which requires proof of objective fault or which does not require proof of any fault.
A.22 Clause 5(4) provides that D bears an evidential burden as to whether D would have had the same mistaken belief if he or she had not been voluntarily intoxicated but that, if D discharges the evidential burden, the burden of proof on the issue lies with the prosecution. This means that, so long as D can point to credible, admissible evidence suggesting that D might plausibly have made the same mistake if he or she had been sober, then the prosecution must prove beyond reasonable doubt that D would not have made the same mistake if sober.
A.23 By virtue of clause 5(5), these rules apply to all statutory provisions which provide that D’s mistaken understanding of the facts amounts to, or is relevant to, a defence (as defined in clause 5(2)). Thus, to take a couple of examples, section 5(3) of the Criminal Damage Act 197119 and section 12(6) of the Theft Act 196820 must be read in accordance with clause 5(3)(b) if D’s state of intoxication was self-induced.21
16   Clause 5(1) and (2). An element which has been framed as a defence, but which the prosecution must prove as a fault element, is covered by clause 3 or clause 4 (see clause 1(1) and (2) with clause 5(2)(a)). The defences set out in clause 1(2)(a) and (b) are covered by clause 5 (clause 5(2)(b)).
17   This is in line with clause 2.
18   Clause 8(3) replaces s 76(5) of the Criminal Justice and Immigration Act 2008 so that the provisions of s 76 are read with the more general rules in clause 5 (with no change in the substance of the law governing intoxication and self-defence). Similarly, s 6(5) and (6) of the Public Order Act 1986 is repealed by clause 8(2) so that the position for s 6, where D is voluntarily intoxicated, is governed by the Bill’s general provisions.
19   The “honest belief” provision which may be relied on in support of a defence under s 5(2) of the Act.
20   The “belief that he has lawful authority” defence to a charge of taking a conveyance without consent under s 12(1) of the Act.
21   This reverses Jaggard v Dickinson [1981] 1 QB 527 in this respect. See also clause 8(1) which amends s 5(3) of the Criminal Damage Act 1971 to make the position clear beyond peradventure.
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6                                                                                               Criminal Law (Intoxication) Bill
Part 2 — Other provisions
6 Meaning of voluntary and involuntary intoxication
(1)    For the purposes of this Act, an intoxicated person (“D”) is involuntarily intoxicated if D’s intoxication was entirely, or almost entirely, involuntary.
(2)    Otherwise, for the purposes of this Act D is voluntarily intoxicated.
(3)    If D’s intoxication results from taking an intoxicant because of an addiction, it counts as voluntary.
(4)    Intoxication resulting from either of the following is an example of involuntary intoxication—
(a)    administration of an intoxicant to D without D’s consent,
(b)    taking an intoxicant under duress.
(5)    If D’s intoxication results from either of the following, it counts as involuntary—
(a)    taking an intoxicant which D reasonably believed was not an intoxicant,
(b)    taking an intoxicant for a proper medical purpose.
(6)     D is to be regarded as taking an intoxicant for a “proper medical purpose” only if it was a drug or medicine properly authorised or licensed by an appropriate authority and—
(a)    D took it in accordance with the advice of a suitably qualified person, or
(b)    D took it in accordance with the instructions accompanying it, or
(c)    if D took it otherwise than as mentioned in paragraph (a) or (b), it was reasonable for D to have done so.
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EXPLANATORY NOTES
Clause 6
A.24 Clause 6(1) provides that D is to be regarded as involuntarily intoxicated if the intoxication was entirely or almost entirely involuntary. Some cases where D is to be regarded as having been involuntarily intoxicated are set out in clause 6(4) and (5).22
A.25 Clause 6(2) provides that if an intoxicated D was not involuntarily intoxicated he or she is to be regarded as having been voluntarily intoxicated. Clause 6(3) provides that the taking of an intoxicant “because of an addiction” is to be treated as voluntary intoxication. Thus D, a heroin addict, who becomes intoxicated having taken heroin, will not be able to claim that his or her intoxication was involuntary.
A.26 Clause 6(4) sets out two examples of involuntary intoxication (administering an intoxicant without D’s consent and taking an intoxicant under duress), but the list is not exhaustive.
A.27 Clause 6(5) provides, in addition, that D is to be treated as having been involuntarily intoxicated if D took the intoxicant in the reasonable belief that it was not an intoxicant or D took the intoxicant for a proper medical purpose. If D relies on the “proper medical purpose” basis for avoiding the rules applicable to cases of voluntary intoxication, it is necessary to refer to clause 6(6).
A.28 The general position for D who wishes to rely on “proper medical purpose” is set out in clause 6(6)(a) and (b); but if D did not comply with the requirements of paragraph (a) or (b) D will nevertheless be regarded as involuntarily intoxicated if D proves (on the balance of probabilities) that his or her conduct was reasonable in the circumstances.23
A.29 But what of the situation where D becomes addicted to an intoxicating drug which was originally prescribed for a proper medical purpose and, in a state of intoxication, D commits the external element of a crime? In a case of this sort the court would first need to consider whether the relevant taking of the drug was for a proper medical purpose within the requirements of clause 6(5)(b) and (6). If it was, then D’s state of intoxication would be regarded as involuntary. If, however, the prescription was just part of the history, and D’s taking of the drug was no longer for a proper medical purpose, then D’s intoxication would be regarded as voluntary, notwithstanding the addiction.24
22   It is for D to prove that he or she was involuntarily intoxicated; see clause 7(4).
23   Clause 6(6)(c) and clause 7(4).
24   Clause 6(3).
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Criminal Law (Intoxication) Bill Part 2 — Other provisions
7
7 Presumptions and proof
(1)    In this section, “D” means the person referred to in section 1(1) or 5(1).
(2)    For the purposes of this Act it is to be taken that D was not intoxicated at the material time, unless—
(a)    the prosecution proves the contrary beyond reasonable doubt, or
(b)    D adduces evidence which is sufficient to raise an issue to the contrary.
(3)    If D adduces evidence as mentioned in subsection (2)(b), it is to be taken for the purposes of this Act that D was intoxicated at the material time, unless the prosecution proves beyond reasonable doubt that D was not.
(4)    If for the purposes of this Act D was (or is to be taken to have been) intoxicated at the material time, then it is to be taken for those purposes that D’s intoxication was voluntary, unless D shows the contrary on the balance of probabilities.
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EXPLANATORY NOTES
Clause 7
A.30 Clause 7 sets out the rules governing the incidence of the burden of proof and the standard of proof to be applied in cases where intoxication arises as a potential issue.
A.31 Clause 7(2) provides, in effect, that it is to be presumed that D was not intoxicated at the relevant time. The provision goes on to provide, however, that either party may rebut the presumption:
•     The prosecution will rebut this presumption of sobriety by proving that D was intoxicated.25 The prosecution will seek to do this if reliance is to be placed on one of the general rules for voluntary intoxication and subjective fault (clause 3(3) and clause 4(3)) or the equivalent rule for defences (clause 5(3)(b)).26
•     If D wishes to rely on clause 2, clause 3(4) and (5), clause 4(4) and (5), or clause 5(3)(a), D will seek to rebut the presumption of sobriety by adducing or eliciting admissible evidence to suggest, as a reasonable possibility, that he or she was intoxicated.27 If D is able to discharge this evidential burden, a new presumption (that D was intoxicated) arises; and, if it is considered necessary to rebut this presumption, the prosecution will have to prove that D was not
intoxicated.28
A.32 Clause 7(4) provides that if at the relevant time D was intoxicated, or is taken to have been intoxicated, then it is to be presumed that D’s state of intoxication was self-induced. If D wishes to contend that his or her state of intoxication was involuntary, so as to rely on clause 2 or clause 5(3)(a), clause 7(4) goes on to provide that D must prove involuntary intoxication on the balance of probabilities.
A.33 The requirement that D must prove involuntary intoxication means that D must prove the factual basis of his or her involuntary intoxication. In the vast majority of such cases D will no doubt contend that his or her situation falls within the list of examples or cases set out in clause 6(4) and (5).
25   Clause 7(2)(a).
26   D may counter that he or she was sober; or perhaps contend, if intoxication is established, that he or she was involuntarily intoxicated.
27   Clause 7(2)(b).
28   Clause 7(3).
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8                                                                                              Criminal Law (Intoxication) Bill
Part 2 — Other provisions
8 Consequential amendments and repeal
(1)    In section 5 of the Criminal Damage Act 1971 (c. 48) (meaning of “without lawful excuse”), in subsection (3), at the end add “, but this is subject to section 5 of the Criminal Law (Intoxication) Act 2009 (which makes provision about mistaken beliefs and intoxication)”.
(2)    In section 6 of the Public Order Act 1986 (c. 64) (fault element of certain offences relating to public order), subsections (5) and (6) (which deal with the effects of intoxication) are repealed.
(3)    In section 76 of the Criminal Justice and Immigration Act 2008 (c. 4) (reasonable force for purposes of self-defence etc.), for subsection (5) substitute—
“(5) But—
(a)    in relation to England and Wales, subsection (4)(b) is subject to section 5 of the Criminal Law (Intoxication) Act 2009 (which makes provision about mistaken beliefs and intoxication);
(b)    in relation to Northern Ireland, subsection (4)(b) does not enable D to rely on any mistaken belief attributable to intoxication that was voluntarily induced.”
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EXPLANATORY NOTES
Clause 8
A.34 Clauses 8 sets out two amendments to and one repeal of existing legislation.
A.35 Clause 8(1) amends section 5(3) of the Criminal Damage Act 1971 to make it clear that that provision is to be read subject to clause 5.
A.36 Clause 8(2) repeals subsections (5) and (6) of section 6 of the Public Order Act 1986. These subsections are no longer necessary given the general scheme provided by this Bill.
A.37 Clause 8(3) amends section 76(5) of the Criminal Justice and Immigration Act 2008 so that (for England and Wales) reference is made to clause 5 of the Bill in cases where D relies on self-defence or the defence in section 3(1) of the Criminal Law Act 1967 and D was intoxicated.
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Criminal Law (Intoxication) Bill Part 2 — Other provisions
9
9 Citation, commencement, application and extent
(1)    This Act may be cited as the Criminal Law (Intoxication) Act 2009.
(2)    This Act comes into force at the end of the period of 2 months beginning with the day on which it is passed.
(3)    Nothing in this Act applies in relation to any offence committed before the Act comes into force.
(4)    Nothing in this Act affects the law relating to an issue of automatism or insanity.
(5)    Section 8(3), and this section, extend to England and Wales and Northern Ireland.
(6)    Subject to that, this Act extends to England and Wales only.
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EXPLANATORY NOTES
Clause 9
A.38 This clause is largely self-explanatory.
A.39 The only provision requiring an explanation is clause 9(4). This provides that the common law continues to govern the situation where D was intoxicated and an issue in the trial is the question whether or not D was insane (the defence of insanity) or D wishes to rely on the defence of (non-insane) automatism.
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APPENDIX B
PREVIOUS RECOMMENDATIONS
THE REPORT OF THE BUTLER COMMITTEE1
B.1 The Committee on Mentally Abnormal Offenders dedicated a number of paragraphs of their report to the question of voluntary intoxication and criminal liability.2 The Committee’s view was that there should be no Majewski rule permitting a conviction for an offence of “basic intent” on the basis of self-induced intoxication if D did not have the fault element required by the definition of that offence.
B.2 In all cases D would be liable only if it could be proved that he or she acted with the culpable state of mind required for liability. If, because of evidence of self-induced intoxication, it could not be proved to the criminal standard that D acted with the required state of mind, D would not be liable for the offence charged. D would, however, be liable for a new “fall-back” offence of “dangerous intoxication” if it could be proved that, in D’s state of self-induced intoxication, he or she committed the conduct element of any one of a number of “dangerous offences”, such as an offence involving injury to the person.3 The only fault the prosecution would have to prove would be that D became intoxicated voluntarily – that is to say, that D intentionally took a drug knowing that it was capable in sufficient quantity of having an intoxicating effect.4
B.3 If convicted of the “fall-back” offence on indictment, D would face a maximum term of one year’s imprisonment if it was a first offence, and a maximum of three years’ imprisonment for any subsequent conviction for the same offence.5
THE CRIMINAL LAW REVISION COMMITTEE’S FOURTEENTH REPORT6
B.4 Accepting that the harmful conduct of violent inebriates is socially unacceptable and deserving of punishment, the Criminal Law Revision Committee felt that the recommendations of the Butler Committee did not go far enough:
1    Report of the Committee on Mentally Abnormal Offenders, (1975) Cmnd 6244.
2    Above, paras 18.51 to 18.59.
3    Above, paras 18.54 to 18.55.
4    Above, paras 18.56 to 18.57.
5    Above, para 18.58. On summary trial the maximum suggested was six months’ imprisonment.
6    Offences Against the Person, (1980) Cmnd 7844.
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The record must indicate the nature of the act committed, for example whether it was an assault or a killing. It would be unfair for a defendant who has committed a relatively minor offence while voluntarily intoxicated to be labelled as having committed the same offence as a defendant who has killed. The penalty suggested is also ... insufficient to deal with serious offences such as killings or rapes while voluntarily intoxicated by drink or
drugs.7
B.5 The majority view was, in effect, that the present common law Majewski rule should be codified, albeit without reference to the confusing concepts of “basic” and “specific” intent. The recommendation was that there should be a statutory provision incorporating the following test:
(1)      evidence of voluntary intoxication would continue to be capable of negating the mental element in murder and the intention required for the commission of any other offence;8
(2)      with regard to offences for which recklessness constitutes an element of the offence, if the defendant, owing to voluntary intoxication, had no appreciation of a risk which he would have appreciated had he been sober, such lack of appreciation would continue to be immaterial.9
B.6 According to the CLRC:
In practice juries and courts are reluctant to accept that a defendant was so drunk that he did not form any special intent which may be required or foresee any consequences of his conduct. The Majewski situation is rarely met but when it is the courts can, if the circumstances justify it, mitigate the penalty to such extent as is felt appropriate ...10
B.7 It was recognised that objections could properly be raised against the second (that is, Majewski) limb of the recommendation on the ground of principle, but the CLRC nevertheless concluded that codification of the common law would be less problematic than, and therefore preferable to, the creation of an additional offence.11 The creation of a new offence, such as the offence of “doing the act while in a state of voluntary intoxication” put forward for consideration by Professors John Smith and Glanville Williams,12 would, it was said:
7    Above, para 261. The CLRC did accept, however, that the concept of voluntary intoxication should be defined in line with the recommendation of the Butler Committee.
8    The CLRC felt that D would have a defence to a charge of rape if he was so intoxicated that he lacked the intention to have sexual intercourse (para 272).
9    Above, para 267 (emphasis added). In formulating this test, the Committee relied on s 2.08(2) of the American Model Penal Code.
10   Above, para 265.
11   Above, paras 262 to 264.
12   Above, para 263.
117
(1)      add to the already considerable number of matters which a jury often has to consider when deciding whether the offences charged have been proved;
(2)      give rise to difficulties in cases where one group of jurors concludes that D was drunk, but nevertheless subjectively reckless for the purposes of the offence charged, whereas the other group concludes that D was so drunk that he can be liable only for the alternative offence of “doing the act”;
(3)      possibly result in defendants raising intoxication in many more trials, and seeking to plead guilty to the new offence to avoid being tried for and convicted of the offence charged, which may be regarded as the more serious offence, thereby placing the judge and prosecution in a difficult position;
(4)      give rise to confusion amongst the general public.
B.8 With regard to mistakes of fact in cases where D wishes to rely on the defence of self-defence or duress, the CLRC felt that a mistake wholly or partly induced by an intoxicant should allow D to avoid liability if the offence charged required an intention, but that it should not be permissible for D to rely on any such mistake if the offence required nothing more than recklessness.13
THE LAW COMMISSION’S CODIFICATION OF THE LAW – LAW COM NO 177
B.9 The CLRC’s recommendations14 were adopted in the Law Commission’s Draft Criminal Code Bill,15 in accordance with the Commission’s general policy to adopt recent CLRC proposals which had not yet been acted upon by the Government.16
B.10 The provision in the Draft Criminal Code Bill (“clause 22”) is described in the commentary as “a somewhat complex clause”, the reason being that “a simpler clause on intoxication could only result from a major law reform exercise”. The Law Commission concluded, however, that “like the majority of the Criminal Law Revision Committee, we are not in any case persuaded that the law as stated in clause 22 would be seriously unsatisfactory”.17
13   Above, paras 277 to 278.
14   Fourteenth Report, Offences Against the Person, (1980) Cmnd 7844, summarised in para 279.
15   A Criminal Code for England and Wales: Report and Draft Criminal Code Bill (1989), Law Com No 177.
16   Above, Vol 1, para 3.34.
17   Above, Vol 2, para 8.33.
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LAW COM NO 218 AND THE HOME OFFICE’S CONSULTATION PAPER
B.11 Certain aspects of clause 22 of Law Com No 177 were incorporated into clauses 21, 33 and 35 of the Commission’s Draft Criminal Law Bill appended to the report Offences Against the Person and General Principles (1993), Law Com No 218. These provisions were intended to do no more than codify the existing common law rules on voluntary intoxication insofar as they were relevant to offences against the person. No attempt was made to remove any anomalies in the law.
B.12 Clause 21(1) of the Draft Criminal Law Bill provides that a person who was voluntarily intoxicated at the material time shall be treated:
(1)      as having been aware of any risk of which he would have been aware had he not been intoxicated; and
(2)      as not having believed in any circumstance which he would not have believed in had he not been intoxicated.
B.13 Paragraph (a) is uncontroversial and accords with clause 22(1)(a) of the Commission’s Draft Criminal Code Bill.
B.14 Paragraph (b) draws no distinction between mistakes of fact as they relate to crimes of “specific intent” and mistakes of fact as they relate to allegations of recklessness.18 This accords with the common law position as recently confirmed by the Court of Appeal in Hatton19 – where it was held that D is liable for murder (a “specific intent” offence) if D killed V in the mistaken belief that V was about to launch an attack on him or her, if D’s mistake arose from voluntary intoxication – but it is a departure from the Commission’s Draft Criminal Code Bill.20
B.15 Clause 35 of the Draft Criminal Law Bill sets out definitions of intoxication and voluntary intoxication which are broadly in line with clause 22(5) to (7) of the Draft Criminal Code Bill.21
18   See Law Com No 218, para 44.9.
20   See A Criminal Code for England and Wales: Report and Draft Criminal Code Bill (1989) Law Com No 177, Vol 2, para 8.42. It is to be noted that Law Com No 218 did not support the retention of this aspect of the common law. It was included in the Draft Criminal Law Bill (as cl 33(1)) pending the outcome of the Commission’s project on voluntary intoxication, which was then underway, simply “to maintain the common law position on this issue ... to avoid any argument that a Bill that did not address the intoxication rules had thereby abolished them”. For the Commission’s final view, recommending a change in the law, see Legislating the Criminal Code: Intoxication and Criminal Liability (1995), Law Com No 229, paras 7.10 to 7.12
21   The definition of “intoxicant” in cl 35(5) reflects the approach adopted in cl 22(5)(a) of the Draft Criminal Code Bill, save that the phrase “impair awareness or understanding” is preferred over “impair awareness or control”; the definition of “voluntary intoxication” in cl 35(2) and (3) is a refined version of cl 22(5)(b) and (c) of the Draft Criminal Code Bill; cl 35(4) repeats cl 22(6) of the Draft Criminal Code Bill; and cl 35(6) is equivalent to the evidential burden provision in cl 22(7) of the Draft Criminal Code Bill.
119
B.16 Finally, paragraph 13(3) of Schedule 3 to the Draft Criminal Law Bill was included to bring consistency to the law as applied to persons and property. Paragraph 13(3) would amend the “protection of property” defence in section 5(2)(b) of the Criminal Damage Act 1971 to bring it in line with the Bill’s approach to self-defence in clause 27, for which (by virtue of clause 21) it would not be possible to rely on a mistaken belief of fact induced by voluntary intoxication.22
B.17 Following the publication of Law Com No 218 and Draft Criminal Law Bill, the Home Office published its own proposals for reforming the Offences Against the Person Act 1861 in a 1998 consultation paper.23 The Offences Against the Person Bill appended to that paper includes a draft clause on voluntary intoxication (clause 19) which is described in the paper as “similar to that” in the Commission’s Draft Criminal Law Bill. The policy of the Home Office is set out at paragraph 3.23 of the paper:
Clause 19 sets out criteria for the courts to apply when considering whether a defendant had chosen to be drunk. There should be no loophole in the law which excuses violent behaviour simply because an attacker chose to become intoxicated and run the risks that entails.
B.18 Clause 19(1) reproduces the substance of clause 21(1) of the Commission’s Draft Criminal Law Bill with some amendments to the language used.24 It is to be noted that clause 19(1)(b) draws no distinction between mistakes of fact as they relate to crimes of “specific intent” and mistakes of fact as they relate to allegations of recklessness.
B.19 One change in the Home Office draft is that the double negative in clauses 21(1)(b) and 33(1) of the Law Commission’s Draft Criminal Law Bill is removed from clause 19(1)(b) of the Home Office’s Bill. Thus, a person who was voluntarily intoxicated at the material time must be treated “as having known or believed in any circumstances which he would have known or believed in had he not been intoxicated”.
B.20 The double negative is a rather clumsy device, but in this context it served a useful purpose. It will usually be the case, where a defence is based on a mistaken belief, that D’s intoxication led him or her mistakenly to believe that there was a circumstance which did not exist, for example that V was about to launch an attack, and it is that erroneous belief which he or she should not be permitted to rely upon. In other words, D should be regarded as not having believed that there was a non-existent circumstance (for example, that V was about to attack D) if that mistake resulted from voluntary intoxication.
22   As the law stands, for the purposes of s 5(2) of the 1971 Act D is to be judged on his or her mistaken understanding of the facts even if the mistake was caused by his being voluntarily intoxicated (Jaggard v Dickinson [1981] QB 527). The Bill makes no amendment to s 5(2)(a) of the Act, however, as the Commission wished to consider the question as part of the (then) ongoing intoxication project.
23   Violence, Reforming the Offences Against the Person Act 1861.
24   “Must” is used instead of “shall”; and “believed” has become “known or believed”.
120
B.21 The Commission’s Draft Criminal Law Bill does not expressly provide that D should be regarded as having had a particular belief at the material time, once D’s drug-induced mistaken belief has been removed from the equation (although it is implicit that D is to be regarded as having had the state of mind he or she would have had if sober). It should also be noted that the Commission’s version, based on the equivalent provision in the Draft Criminal Code Bill, was intended to address the defensive situation where D made a mistake as to an exempting circumstance, particularly in relation to the defence of self-defence. The Home Office’s version, by contrast, expressly attributes to D a particular state of mind and is not limited to exempting circumstances or to offences of recklessness (unlike clause 22(1)(b) of the Commission’s Bill).
B.22 Finally, it is to be noted that:
(1)      subsections (2), (3) and (7) of clause 19 of the Offences Against the Person Bill repeat, in effect, clause 35(1) to (3) of the Commission’s Draft Criminal Law Bill (on the meaning of “voluntarily intoxicated”);
(2)      clause 19(4) more clearly sets out the effect of clause 35(4) of the Commission’s Bill, with references to omissions as well as acts;
(3)      clause 19(5) repeats the evidential burden provision in clause 35(6) of the Commission’s Bill; and
(4)      clause 19(6) repeats the definition of “intoxicant” in clause 35(5) of the Commission’s Bill.
121
APPENDIX C
OTHER COMMON LAW JURISDICTIONS
INTRODUCTION
C.1 The question whether evidence of intoxication should be admissible to negative the fault element of an offence has been addressed in many other common law jurisdictions, as has the question whether there ought to be a distinction between “specific intent” and “basic intent” offences in line with the approach adopted in DPP v Majewski (“Majewski”)1 for England and Wales.
C.2 In this appendix we set out, in brief, the position for self-induced intoxication in Canada, Australia, New Zealand and the United States.
CANADA
Common law: federal jurisdiction
The distinction between “specific” and “basic” intent offences
C.3 As in England and Wales, the law in Canada draws a distinction between crimes of “basic intent” (“general intent”) and “specific intent”.
C.4 There have been numerous attempts by the Canadian Supreme Court to define what is meant by “specific intent” and “general intent” offences. The accepted definition is that of Fauteux J in George2 (a case decided before the House of Lords’ decision in Majewski). In that case a “general intent” offence was said to require an intent to commit the conduct element of the offence. A “specific intent” offence, on the other hand, was said to require intent as to the purpose in committing that act; that is, an intent as to the consequence element.3
C.5 The decision in George4 was followed by the Supreme Court in Bernard.5 In that case McIntyre J adopted the following definition of “specific” and “general” intent offences:
The general intent offence is one in which the only intent involved relates solely to the performance of the act in question, with no further ulterior intent or purpose … A specific intent offence is one which involves the performance of the actus reus coupled with an intent or purpose going beyond the mere performance of the questioned act.6
2    [1960] SCR 871, 877.
3    This definition was referred to by Lord Simon in DPP v Majewski [1977] AC 445, 478, as “the best description of specific intent in this sense that I know”.
4    [1960] SCR 871.
5    (1988) 67 CR (3d) 113.
6    Above at 139.
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Admissibility of evidence of self-induced intoxication
C.6 The Canadian courts have held that self-induced intoxication can be a defence to a “specific intent” offence. Evidence of intoxication will accordingly be admissible where it raises a reasonable doubt as to whether D had the “specific intent” required by the offence charged.7
C.7 Evidence of self-induced intoxication is inadmissible in relation to “general intent” offences (for example, rape,8 sexual assault,9 and assault10). This was established by the Supreme Court in Leary,11 applying Majewski.
C.8 In Daviault,12 however, the Supreme Court declined to follow the approach adopted in Leary13 having concluded that it was incompatible with the Canadian Charter of Rights and Freedoms, which came into force in 1982. The Supreme Court considered that to exclude evidence of self-induced intoxication as a defence to “general intent” crimes, where it could be demonstrated that D was so intoxicated that it produced a state akin to insanity or automatism, was incompatible with Articles 7 and 11(d) of the Charter.14 The Court therefore held that D would have a defence where it could be proved that he or she was so intoxicated that the “very voluntariness or consciousness of committing the act may be put into question”. The legal burden would rest on D to prove on the balance of probabilities “that he was in a state of extreme intoxication that was akin to automatism or insanity” at the time of the offence.15
C.9 The Court’s reason in Daviault16 for its departure from Leary17 was that D’s self-induced intoxication would be causing him or her to act without the necessary elements of volition and fault. Cory J stated that to convict defendants on proof of the voluntary nature of their intoxication would be convicting them without proof of the mental element of the offence, as there was nothing to suggest that voluntary intoxication inexorably led to offending.18
C.10 Cory J therefore recommended a limited exception that would allow flexibility in the Leary rule, while conforming to the Charter’s requirements:
7    Robinson (1996) 46 CR (4th).
8    Leary (1977) 33 CCC (2d) 473; see also Swietlinkski [1980] 2 SCR 956.
9    Daviault (1994) 93 CCC (3d) 21.
10   Above.
11   (1977) 33 CCC (2d) 473.
12   (1994) 93 CCC (3d) 21.
13   (1977) 33 CCC (2d) 473.
14   Article 7 provides for the right to life, liberty and security and the right not to be deprived thereof except in accordance with the principles of fundamental justice. Article 11 provides that any person charged with an offence has the right to be presumed innocent until proven guilty according to law.
15   Daviault (1994) 93 CCC (3d) 21, 45.
16   Above.
17   (1977) 33 CCC (2d) 473.
18   (1994) 93 CCC (3d) 21, 32.
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This would permit evidence of extreme intoxication akin to automatism or insanity to be considered in determining whether the accused possessed the minimal mental element required for crimes of general intent.19
C.11 In Daviault,20 the prosecution argued that a common law rule which allowed D to be acquitted in cases akin to self-induced automatism would result in a “flood” of new acquittals. Cory J rejected this argument and stated that “it [was] always open to Parliament to fashion a remedy which would make it a crime to commit a prohibited act while drunk”,21 if they felt an acquittal in such cases was unjust.
Statute: federal jurisdiction
C.12 Following the decision in Daviault,22 the Canadian Parliament amended the Canadian Criminal Code. The amendments essentially re-established the position in Leary23 and Bernard.24
C.13 Section 33(1) of the Canadian Criminal Code, as amended, now states that lack of intent caused by self-induced intoxication cannot be a defence to a “general intent” offence “where the accused departs markedly from [a particular] standard of care”.
C.14 According to subsection (2), persons depart markedly from the stated standard of care if they are in such a state of intoxication that they are unaware of or unable to control their behaviour and “interfere or threaten to interfere with the bodily integrity of another person.” Subsection (3) provides that section 33 applies in respect of an offence “that includes as an element an assault or any other interference or threat of interference by a person with the bodily integrity of another person”.
C.15 This provision represented a political compromise: rolling back the practical effect of Daviault25 without openly contradicting the Supreme Court on the Charter point. It therefore reinstates the pre-Daviault rule for “general intent” offences but restricts it to offences containing an element of assault. As the provisions of section 33 apply only to assault related “general intent” offences, Daviault26 still applies to non-assault related “general intent” offences.27
19   Above, 58.
20   (1994) 93 CCC (3d) 21.
21   Above, 43.
22   (1994) 93 CCC (3d) 21.
23   (1977) 33 CCC (2d) 473.
24   (1988) 67 CR (3d) 113.
25   (1994) 93 CCC (3d) 21.
26   Above.
27   See the discussion in Gough, “Surviving without Majewski” [2000] Criminal Law Review 719.
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C.16 The Canadian Supreme Court has not yet considered whether the provisions of the Criminal Code are constitutional. The Supreme Court in British Columbia has held the provisions to be constitutional,28 whereas the Supreme Courts of Ontario and the North West Territories have held the provisions to be unconstitutional.29
Summary: the position in Canada
C.17 The law in Canada may be summarised as follows:
(1)      self-induced intoxication is relevant to “specific intent” offences to the extent that the prosecution must always prove beyond reasonable doubt that D had the “specific intent” required by the offence charged;
(2)      self-induced intoxication is not relevant to “general intent” offences which include an element of assault;
(3)      self-induced intoxication can be relevant to “general intent” offences which do not include an element of assault, but only if D can prove, on the balance of probabilities, “that he was in a state of extreme intoxication that was akin to automatism or insanity”.
AUSTRALIA
Common law: federal jurisdiction
C.18 At common law the High Court of Australia has rejected, by a narrow majority, the rule in Majewski that evidence of self-induced intoxication is irrelevant in relation to a “basic intent” offence. In O’Connor,30 the High Court held that evidence of self-induced intoxication is relevant if it raises a reasonable doubt as to whether D acted intentionally or voluntarily when committing the relevant act.31 The High Court also rejected the adoption of a distinction between “specific” and “basic” intent offences, holding the distinction to be illogical.32
C.19 It was therefore held that self-induced intoxication could be relied upon to negative the fault element of any offence. Importantly, the High Court included voluntariness within its definition of the fault element of an offence, in addition to intention, knowledge and subjective recklessness. Accordingly, D cannot be held criminally responsible for an act unless it can be shown that he or she acted voluntarily with the required mental element. The High Court considered that whilst D was blameworthy for becoming intoxicated, there were no grounds for presuming that D acted voluntarily or intentionally when committing the offence
charged.33
28   Vickberg (1998) 11 CR (5th) 164.
29   Dunn (1999) 28 CR (5th) 295 and Brenton (1999) 28 CR (5th) 308.
30   [1980] HCA 17; (1980-81) 146 CLR 64.
31   Barwick CJ, Stephen J, Murphy J and Aicken J; with Gibbs J, Mason J and Wilson J in dissent.
32   [1980] HCA 17, Barwick CJ at para 53, 54.
33   [1980] HCA 17, Barwick CJ at para 66, 67.
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C.20 Defendants who deliberately became intoxicated to assist their performance of an intended act cannot, however, rely on their state of intoxication to negative the fault element of the offence charged. In such cases the intent to do the relevant act was formed before the intoxication and therefore evidence of intoxication is to be considered irrelevant.34 Similarly those defendants who knew that they had a tendency to commit violent crimes when intoxicated are unable to rely on self-induced intoxication to negative the fault element.35
C.21 The majority of the High Court considered the decision in Majewski to have established, unacceptably, a form of liability beyond the boundaries of common law criminal responsibility. Their view was that to allow a conviction where D was voluntarily intoxicated and incapable of forming the mental element of the offence was to define a new offence. This was a role best left to Parliament, not the
courts.36
C.22 The minority, by contrast, considered the decision in Majewski to be sound. Gibbs J considered the decision to be “illogical” but nevertheless satisfactory, “remembering that the common law is founded on common sense and experience rather than strict logic”.37 Mason J considered the decision in Majewski to accurately reflect the development of the common law, which had always held that voluntary drunkenness is not an excuse for crime.38 His Honour felt that to abandon the rule provided for in Majewski would be “an exorbitant price to pay”, even though the compromise was “lacking in logic”.39
Statute: federal jurisdiction
C.23 The Commonwealth Criminal Code Act 1995 and the Criminal Code 2002 of the Australian Capital Territory (drafted in similar terms) provide that self-induced intoxication cannot “be considered in determining whether a fault element of basic intent existed”.40
C.24 The provisions of these Codes define the fault element of “basic intent” as “a fault element of intention for a physical element that consists only of conduct”.41 A note to these provisions explains that a fault element of intention with respect to a circumstance or with respect to a result is not a fault element of “basic intent”. It goes on to state that self-induced intoxication can be taken into consideration in determining whether D acted with intent, knowledge or (subjective) recklessness. In addition, section 15(5) of the Criminal Code (ACT) expressly provides that self-induced intoxication cannot be considered in assessing whether an act or omission was intended or voluntary.
34   [1980] HCA 17, Barwick CJ at para 25.
35   [1980] HCA 17, Stephen J at para 19.
36   [1980] HCA 17, Barwick CJ at para 66.
37   [1980] HCA 17, Gibbs J at para 6.
38   [1980] HCA 17, Mason J at para 3.
39   [1980] HCA 17, Mason J at para 15.
40   Section 8.2(1) of the Commonwealth Criminal Code Act 1995 and s 31(1) of the Criminal Code (2002) (ACT).
41   Section 8.2(2) and s 30(1).
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C.25 Although self-induced intoxication cannot “be considered in determining whether a fault element of basic intent existed”,42 this does not prevent evidence of self-induced intoxication being considered in deciding whether D had a mistaken belief about facts provided D, at the material time, considered whether or not the
facts existed.43
C.26 For offences which consist entirely of fault elements of “specific intent”, if any part of a defence is based on actual knowledge or belief, evidence of intoxication may be considered in deciding whether the knowledge or belief existed. For offences consisting entirely of fault elements of “basic intent”, if any part of a defence is based on actual knowledge or belief, self-induced intoxication cannot be considered in determining whether the knowledge or belief existed.44
New South Wales
C.27 The NSW government rejected the decision in O’Connor45 by abolishing it, to remove any possible reliance on self-induced intoxication as a basis for escaping liability for certain offences.46 The NSW government recognised the public policy considerations on which the Majewski decision rested, stating that to allow a defence of self-induced intoxication would be “totally unacceptable at a time when alcohol and drug abuse are such significant problems”.47
C.28 Section 428B of the Crimes Act 1900 (NSW) lists examples of “specific intent” offences for which evidence of intoxication may be taken into account (murder is listed as such an offence, but manslaughter is not). In line with the Majewski decision, self-induced intoxication may be taken into account in determining whether D formed the fault element for a “specific intent” offence, but not for other offences.48 An offence of “specific intent” is defined as an offence of which an intention to cause a specific result is an element”.49
C.29 The Act also expressly provides that self-induced intoxication cannot be considered in determining if D committed the conduct element of the offence
voluntarily.50
Queensland and Western Australia
C.30 Queensland and Western Australia are governed by criminal codes which contain similar provisions relating to intoxication.
42   Section 8.2(1) and s 31(1).
43   Section 8.1(4) and s 31(3).
44   Section 8.4(4) and s 33(2).
45   [1980] HCA 17 ; (1980-81) 146 CLR 64.
46   Section 428H of the Crimes Act 1900 (NSW) now provides that the common law relating to the effect of intoxication on criminal liability is abolished.
47   Second Reading Speech, Hansard Legislative Assembly, 6 December 1995, 4278 to 4279.
48   Crimes Act 1900 (NSW) , ss 428C and 428D.
49   Crimes Act 1900 (NSW) , ss 428B(1) and 428C(1).
50   Crimes Act 1900 (NSW) , s 428G.
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C.31 The Criminal Code Act 1899 (QLD) provides that when an intention to cause a specific result is an element of an offence, intoxication, whether complete or partial, and whether intentional (self-induced) or unintentional (involuntary), may be taken into consideration for the purpose of ascertaining whether such an intention in fact existed.51 The Western Australia Criminal Code 1913 is drafted in similar terms.52
C.32 Queensland and Western Australian courts have rejected the application of the O’Connor principles to the interpretation of these Codes.53
C.33 Offences of “basic intent” are not mentioned in the Codes. At common law, however, where the offence charged does not require proof of intention to cause a specific result, self-induced intoxication has not been allowed to negate the
fault element.54
C.34 Furthermore, evidence of self-induced intoxication cannot be admitted to show that D’s conduct was involuntary (under section 23).55
Tasmania
C.35 Under the Criminal Code Act 1924 (TAS), evidence of self-induced intoxication is relevant to an offence of “specific intent” in circumstances where the intoxication renders “the accused incapable of forming the specific intent”.56 According to Snow,57 “specific intent” refers to the intention to bring about a specific result.
C.36 As in Queensland and Western Australia, the Code does not specify whether evidence of intoxication is admissible for offences where a “specific intent” does not form an element of the offence. The courts have, however, adopted a similar stance to those states. That is to say, evidence of self-induced intoxication cannot at common law negative the fault element of a “basic intent” offence:
Though s 17 … is expressly concerned only with the effect of intoxication upon crimes of specific intent and is silent as to its effect upon crimes not requiring proof of such intent, the clear implication of expressing an exculpatory exception in respect of crimes of specific intent is to exclude the possibility that intoxication could have an exculpatory effect upon other
crimes.58
51   Section 28(3).
52   See s 28(3).
53   See, for example, Kusu [1981] Qd R 136; Cameron (1990) 47 A Crim R 491.
54   Kusu [1981] Qd R 136; Miers [1985] 2 QD R; Battle (1993) 8 WAR 449.
55   Bromage [1991] 1 Qd R 1; Battle (1993) 8 WAR 449. Section 23 provides that a person is “not criminally responsible for an act or omission which occurs independently of the exercise of his will, or for an event which occurs by accident”.
56   Section 17(2).
57   [1963] Tas R 271.
58   Palmer [1985] Tas R 138, by Cox CJ at 155. See also Weiderman [1998] TASSC 12 (26 February 1998).
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C.37 The Law Reform Institute of Tasmania commented negatively on the law on intoxication in 2006, principally because “the division between specific and basic intent is arbitrary and its rationale – that of acquittal for a more serious offence and conviction for a less serious offence – does not apply consistently”.59
C.38 The report considered various options but recommended that “evidence of intoxication [should] be relevant to any mental element, including intention, knowledge (including whether the person ought to have known), foresight of the consequences, and whether the act was voluntary and intentional”.60
Victoria
C.39 The Victorian courts continue to apply the common law principles of O’Connor.61 No legislation has been enacted to alter this approach.
C.40 The Victorian Law Reform Commission recommended in its 1999 report62 that the principles in O’Connor should continue to apply in Victoria. This recommendation was supported by the Victorian government.63
South Australia
C.41 The Criminal Consolidation Act 1935 (SA), as amended by the Criminal Law Consolidation (Intoxication) Amendment Act 1999, follows O’Connor.64 It provides that self-induced intoxication may be taken into account if there is evidence that it caused D to act without volition, intention, knowledge or any other mental state or function relevant to criminal liability.65
C.42 However, the Act also includes a “fall-back” offence based on criminal negligence where D’s conduct resulted in serious harm66 but D is found not guilty of an offence by reason of his or her self-induced intoxication.67
Northern Territory
C.43 The Northern Territory also predominantly follows the O’Connor68 approach.
59   Tasmanian Law Reform Institute, Intoxication and Criminal Responsibility, Final Report 7 (August 2006) p 8.
60   Above.
61   (1980-81) 146 CLR 64. See, for example, R v Gill; R v Mitchell (2005) 159 A Crim R 243; Le Broc [2000] VSCA 125 (28 July 2000); R v Faure [1999] VSCA 166 (24 September 1999).
62   Inquiry into Criminal Liability for Actions Performed in a State of Self-Induced Intoxication (1999).
63   Government’s Response to the final report, above.
64   (1980-81) 146 CLR 64.
65   See s 268(2) and (3).
66   Serious mental or physical harm; or loss of, or damage to property, where the amount or value of the loss or damage exceeds $10 000 (see s 267A).
67   Section 268(5) provides that if D’s conduct can be adjudged to have fallen short of the standard appropriate to a reasonable and sober person, D may be convicted of causing serious harm by criminal negligence. The maximum penalty for such an offence is four years’ imprisonment.
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C.44 Section 31 of the Criminal Code (NT) provides that D is “excused from criminal responsibility for an act, omission or event unless it was intended or foreseen by him as a possible consequence of his conduct”. Section 7(1) states that regard may be had to evidence of voluntary intoxication to determine whether D is guilty or not guilty of the offence. However, it is presumed in such cases that, unless the intoxication was involuntary, D “foresaw the natural and probable consequences” of his conduct. It is for D to adduce or elicit evidence of a lack of intention or foresight on account of voluntary intoxication. If this is done, the prosecution must prove that D intended or foresaw his or her conduct.
C.45 The Code also includes an offence which ensures that voluntarily-intoxicated persons are held responsible for their actions. So, if evidence of self-induced intoxication is found to negate the fault element of the offence charged, resulting in acquittal, D may nevertheless be held criminally liable.69
NEW ZEALAND
C.46 The New Zealand Crimes Act 1961 contains no specific provisions on self-induced intoxication.
C.47 In the case of Kamipeli,70 however, the Court of Appeal held that the distinction between “basic” and “specific” intent offences ought to be rejected. The Court considered that, whilst intoxication was not a defence to a crime, self-induced intoxication should be relevant in determining whether D had the intention or recklessness required by the offence charged.71 It was held that whilst drunkenness should not be considered a defence in and of itself, it is further evidence which the jury must take into account.
C.48 Kamipeli72 was decided before Majewski. In Roulston,73 Woodhouse J stated that the question whether or not the Majewski principles applied in New Zealand remained open;74 but the Kamipeli principles continue to be applied.
68   (1980-81) 146 CLR 64.
69   See s 154.
70   [1975] 2 NZLR 610.
71   Above, by McCarthy P at 616.
72   [1975] 2 NZLR 610.
73   (1976) 2 NZLR 644.
74   Above, 653 to 654.
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C.49 In 1984, the New Zealand Law Reform Committee75 endorsed the approach of the Court of Appeal in Kamipeli.76 The Committee recommended that the principles established in that case should be codified so that self-induced intoxication would be relevant in determining whether D acted intentionally or recklessly. In making its recommendations, the Committee recognised public concerns relating to the acquittal of intoxicated offenders, but noted the experience of Committee members that it was in fact rare for a person to escape liability on the basis of self-induced intoxication.77
UNITED STATES
Common law
C.50 Although the distinction between “specific intent” and “basic intent” offences is maintained in some of the US case law,78 it is less important than in England and Wales. The US courts instead distinguish between different types of offence to determine whether evidence of self-induced intoxication can be admitted.
C.51 For offences with a requirement of intent, and offences defined with a requirement of “knowingly” or “wilfully”, if the intoxication negatives an element of the crime, D cannot be found guilty. If D was so intoxicated that he or she could not form the required intention79 or knowledge,80 the evidence of intoxication will be considered relevant and might provide D with a way of avoiding liability.
C.52 For offences requiring recklessness, the majority of American states accept that if the only reason why D was reckless in his or her actions is that D was too intoxicated to realise the risk he or she was taking, then D will have acted with the recklessness required by the offence.81
Model Penal Code
C.53 The Model Penal Code and some of the modern recodifications have adopted a similar approach to the common law. The system contained in Section 2.08(2) of the American Model Penal Code makes no reference to a distinction between “specific intent” and “basic intent” offences but provides that self-induced intoxication is of no relevance to offences including recklessness as an element. The provision states that:
when recklessness establishes an element of the offence, if the actor, due to self-induced intoxication, is unaware of a risk of which he would have been aware had he been sober, such unawareness is immaterial.
75   Report on Intoxication as a Defence to a Criminal Charge (1984).
76   [1975] 2 NZLR 610.
77   See also “Criminal Liability for Self-Induced Intoxication” (May 1999), report of the Victorian Parliament Law Reform Committee, pp 54 to 55.
78   See, eg, United States v Nacotee 159 F.3d 1073 (7th Cir) (1998).
79   Allen v United States, 239 F.2d 172 (6th Cir) (1956).
80   State v Galvin, 147 Vt 215, 514 A.2d 705 (1986).
81   State v Shine 193 Conn 632 (1984).
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C.54 American law allows D to rely on his or her mistaken belief in self-defence only if that mistake was reasonable. Accordingly, unless the mistake is one which a reasonable and sober person would have made, D cannot rely on his voluntary intoxication in support of self-defence. D is to be judged according to the standard of the reasonable sober person.82
Jurisdiction of the states
C.55 The rules in the United States outlined above are similar to those applied in England and Wales. There is, however, one major difference. Although most individual states allow evidence of voluntary intoxication to negate criminal liability in certain circumstances, a number of states (for example, Montana) have a wider prohibition on the admissibility of evidence of voluntary intoxication, excluding such evidence even in relation to fault requirements of intention or knowledge.
C.56 Montana’s rule on intoxication was recently challenged in the United States Supreme Court.83 Montana state law makes it clear that voluntary intoxication “may not be taken into consideration in determining the existence of a mental state.” In Montana v Egelhoff,84 D argued that this rule prejudiced his right to a fair trial and denied him the presumption of innocence.
C.57 A plurality of four judges found that the rule allowing for the consideration of evidence of voluntary intoxication in certain crimes was of “too recent a vintage and ha[d] not received sufficiently uniform and permanent allegiance to qualify as fundamental” and therefore a rule excluding such evidence was not unconstitutional.85 Another judge found in favour of the state of Montana, albeit for a different reason, and the statute excluding consideration of voluntary intoxication for all crimes was therefore held to be valid. (The other four judges dissented, relying on the “simple principle [that] due process demands that D be afforded a fair opportunity to defend against the State’s accusations.”)
82   United States v Weise 89 F3d 502 (1996).
83   Montana v Egelhoff 518 US 37 (1996).
84   518 US 37 (1996).
85   US constitutional law states that there is no absolute right to produce evidence, but rather a due process right not to have evidence excluded when such exclusion “offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.” See Patterson v New York 432 US 197 (1977).
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