The basic point

There is no such thing as a defence of intoxication under the criminal law. If you ever find yourself writing ‘D may be able to take advantage of a defence of intoxication’ you are doing something very, very wrong. You need to stop and think – why am I saying this?

Intoxication is only relevant to whether or not a defendant has committed a criminal offence if it means: (1) he did not commit the actus reus of the offence; or (2) he did not have the mens rea for the offence; or (3) he mistakenly believed in facts which, if true, would mean he had a defence to being found guilty of committing that offence. If none of (1), (2) or (3) apply, then the defendant is guilty – the fact that he acted in an intoxicated state will be completely irrelevant.

Kingston illustrates the point. Defendant’s drink was spiked, his inhibitions were consequently loosened, and he ended up sexually assaulting a boy. He knew what he was doing at the time and was in control of his body. He was found guilty: he had the actus reus of the offence (unconsented to touching of a sexual nature), he has the mens rea (intention to touch, or recklessness as to touching) and was not acting under a belief which, if true, would have given him a defence. The fact that the defendant would not have acted as he did had his drink not been spiked was irrelevant. He was still responsible for his actions. If I offered you a million pounds to kill your best friend, and you took the money and killed your best friend, you could not dream of trying to get off the charge by arguing, ‘Had I not been offered the money, I would never have killed my best friend.’ And yet people still try to argue that Kingston should have been acquitted. Whatever it was that caused you to loosen your inhibitions – money, drugs, drink, lust – if you are still responsible for your actions, you can still be held accountable for them under the criminal law.

Let’s now look at how the law handles cases when a defendant can argue that either (1), (2) or (3), above, apply.

No actus reus

In this sort of case, the effect of D’s intoxication either means that D had no idea what he was doing, or D was not in control of his body. In either case, D might be able to argue: I didn’t have the actus reus because I didn’t cause whatever harm it is that my body did while I was blacked out or had no control over my body’s physical movements. If this argument works, then D is entitled to be acquitted on the basis of non-insane automatism (not insane automatism, because the automatism had an external cause – the intoxication). But there is one exception. If D was responsible for his own intoxication then we can say (at least where the actus reus of the offence requires that it be shown that D caused a particular harm) that D did have the actus reus. By causing himself to get drunk, he was the ultimate cause of the harm that his body did while D was blacked out or not in control of his body’s physical movements. So we can contrast two cases:

Wild Thing 1. D gets so drunk in a pub that he ends up having convulsions. As he is flailing around, one of his fists hits a fellow drinker, V. In this case D has the actus reus of assault occasioning actual bodily harm (assuming that the hit did abh to V). D  ultimately caused his fist to touch V by getting so drunk that he went into convulsions, and this caused (we are supposing) V to suffer actual bodily harm.

Wild Thing 2. Same as Wild Thing 1 except D was drinking what he thought was orange juice, but it had been spiked by T. In this case, D does not have the actus reus for assault occasioning actual bodily harm because he did not cause his fist to hit V. T did that; so if anyone is going to be guilty of assault occasioning actual bodily harm, it should be T. But D is entitled to be acquitted here on the basis of non-insane automatism.

No mens rea

In this sort of case, the effect of D’s intoxication means that D can deny that he had the mens rea for the offence with which he has been charged. For example, if, say, he was charged with murder, D would be arguing – my intoxicated state means that I did not have an intent to kill or an intent to cause gbh. If, on the other hand, he was charged with malicious wounding, D would be arguing – I did not appreciate that there was an unreaonable risk that V would suffer some physical harm from my actions. Here are a couple of situations where D would be able to make such an argument:

Polar Bear. D gets blind drunk in a pub. As he walks outside the pub, alone, he sees what he thinks is a polar bear coming towards him. (In fact, it is V, dressed in a white parka.) Thinking that the polar bear’s head would look great on his wall, D grabs hold of what he thinks is the polar bear and cuts its head off with a handy knife. On sobering up, D is told that he decapitated V and is being charged with murder. D has the actus reus for murder: he caused V’s death by sawing V’s head off. But D will argue that he did not have the mens rea for murder when he was sawing V’s head off: he intended to kill a polar bear, not a human life in being.

Note that this argument would not work if D was getting blind drunk in order to get up the courage to go home and kill his wife. In such a case, we could dial back the moment when D caused V’s death to the moment when he was getting drunk in the pub, and say that that act of getting drunk caused V’s death because V would not have died had D not gotten blind drunk, and there was no obvious break in the chain of causation after the moment he got drunk to break the chain between the getting drunk and V’s dying. And at the moment D got drunk, he did have an intent to kill – he was getting drunk with the aim or purpose of killing his wife. So in that situation, D would not be able to deny that he had the mens rea for murder, contemporaneous with the actus reus, and would consequently be convicted of murder. This is known as the ‘Dutch courage rule’ (first articulated by Lord Denning in Attorney-General for Northern Ireland v Gallagher).

But let’s assume the ‘Dutch courage rule’ doesn’t apply in Polar Bear: D was getting drunk just for the hell of it. In such a case, D would argue that he should be acquitted because he did not have the mens rea for murder.

Darts. D gets blind drunk in a pub. He gets up, intending to have a game of darts. But he is so drunk, he thinks that the darts in his hand are actually little wriggling mice. He is so disgusted, he throws one of the ‘mice’ at a nearby drinker, V, shouting, ‘Look at this! That’s horrible!’ When D sobers up, he is told that V was actually struck in the eye by the dart that he threw at V, and that D is going to be charged with malicious wounding, contrary to s 20 of the Offences Against the Person Act 1861. D has the actus reus: what he did in throwing the ‘mouse’ at V caused V to be wounded. But D will argue that he did not have the mens rea: when he threw the ‘mouse’ at V, he did not foresee that V would suffer ‘some kind of physical harm’ as a result of his actions.

In cases where D seeks to rely on his own intoxicated state in order to deny that he had the mens rea of the offence with which he has been charged, a very simple rule (called the Majewski rule) applies to determine whether D can do this. In the case where D was to blame for getting drunk, the courts ask – Had D not been drunk, would he have had the mens rea for the offence with which he has been charged? If the answer is ‘yes’ then D will not be allowed to deny that he had the mens rea for the offence with which he has been charged. If the answer is ‘no’, then D will be allowed to persist in his plea that he did not have the mens rea for the offence with which he has been charged, and will be acquitted on the basis of no mens rea.

Let’s see how the Majewski rule would apply in our two situations:

Polar Bear. Here D’s drunken state means that he did not have the mens rea for murder, but he was also to blame for getting drunk, so we might prevent him denying that he had the mens rea for murder depending on the application of the Majewski rule. So we ask – Had D not been drunk, would he have had an intent to kill or an intent to cause gbh? The answer, pretty obviously, is ‘no’ so D is allowed to persist in his plea that he did not have the mens rea for murder and will be acquitted on the basis of no mens rea.

Darts. Here D’s drunken state means that he did not have the mens rea for malicious wounding, but he was also to blame for getting drunk, so we might prevent him denying that he had the mens rea for malicious wounding depending on the application of the Majewski rule. So we ask – Had D not been drunk, would he have foreseen that there was a risk of V suffering some kind of physical harm when he acted as he did? Well, had D not been drunk, he would have realised he was holding a dart, not a mouse, so he plainly would have foreseen that there was a risk of V suffering some kind of physical harm when he threw the dart at V. So the answer to our question is ‘yes’ and as a result D will not be allowed to deny that he had the mens rea for malicious wounding. As a result, D will be convicted of malicious wounding – he committed the actus reus, and is not allowed to deny that he had the mens rea, and will have no relevant defence.

The textbooks try to sum up the above by saying that a defendant who is charged with a criminal offence will – if he was to blame for getting drunk – be allowed to rely on his drunken state to deny that he had the mens rea for the offence if the offence was one of ‘specific intent’ (= mens rea requires an intent to produce a particular outcome), but not if the offence was one of ‘basic intent’ (= mens rea can be established merely by showing that the defendant foresaw that his actions would have a particular outcome). But this is dangerously vague. It would be better just to ask, in a case where the defendant seeks to rely on his drunken state to establish that he did not have the mens rea for the offence with which he has been charged, and the defendant was to blame for getting drunk, the Majewski question: Would the defendant have had the mens rea had he not been drunk? Answering that question will allow you to determine whether or not the defendant will be allowed to deny that he had the mens rea without having to worry about whether the offence that the defendant has been charged with is one of ‘specific intent’ or ‘basic intent’.

Mistaken belief in defence

In this sort of case, D’s intoxicated state means that he believed facts were true, that if they were true would have given him a defence, such as self-defence, or duress. Examples:

Banana Man. D is high on LSD. In his drunken state, he believes V is running towards him with a knife, and is about to stab him. D takes out a gun and shoots V dead. In fact, V was not holding a knife but a banana, which he was urging D to eat.

Down at Heel. D is in the pub with V. V is telling D about his financial problems, and says to D, ‘You’ll take care of me, won’t you? You’d really regret it if you didn’t.’ D is pretty drunk and misinterprets V as threatening that he will kill D unless D immediately gives him money. D pulls out a gun and holds up the pub, netting £2,000, which he instantly hands over to an astonished V.

In these cases, the courts ask a very simple question – Was D to blame for his intoxicated state? If he was, then he will not be allowed to rely on his mistaken belief to argue that he has a defence. But if he was not to blame for being intoxicated, and if the facts that D’s intoxicated state led him to believe were true would – if true – have given him a defence, then D will be allowed to raise that defence to the offence with which he has been charged.

So if, in Banana Man, someone had slipped D a tab of LSD without his realising it, and shooting V would have been a reasonable thing to do had V actually been about to knife D, then D will be acquitted of murder on the ground of self-defence. (Note that in Banana Man, the fact that D had the actus reus and mens rea for murder is easily established.) But if in Banana Man, D had taken the LSD, he will not be allowed to rely on his mistaken belief to argue that he should be acquitted on the ground of self-defence. (Note that this is an exception to the normal approach, established in Gladstone Williams, that a defendant will be entitled to raise a defence of self-defence so long as he honestly believed in facts that, if true, would have given him a defence of self-defence.)

The same is true in Down at Heel. If D was to blame for getting drunk, he will not be allowed to rely on a defence of duress when he is charged with theft. But if someone had been spiking his orange juice, he will be allowed to rely on his mistaken belief that V was threatening to kill him to set up a defence of duress. (This is assuming that on the facts that he believed to be true he would have had a defence of duress.)

The one case where a defendant who was to blame for getting drunk will still be allowed to rely on a mistaken belief in facts which, if true, would have given her a defence was established in Jaggard v Dickinson. Under s 5(2) of the Criminal Damage Act 1971, it is a defence to being convicted of causing criminal damage to property belonging to another if you believed the owner of the property would have consented to the damage. The defendant, in a drunken state that she was to blame for getting into, attempted to break into her friend’s house believing that her friend would be happy for her to do this. In fact, she had got the wrong house and was breaking down someone else’s door. She was acquitted of criminal damage to property on the basis that she honestly believed that the owner of the door would have been happy for her to break down the door. This was so even though the only reason she thought this was because she was drunk, and she was to blame for getting drunk.

Criticisms of the law

The law on intoxication is sometimes criticised on the basis that –

(1) It is unclear.

(2) It does not provide a defence to someone like the defendant in Kingston.

I don’t think either of these criticisms are justified. The law is pretty clear (as you can see from my summary above), and there is no way the law should be acquitting the defendant in Kingston. But this does not mean that the law in this area is beyond criticism. Two criticisms can be made:

(3) In Darts we end up convicting the defendant of a very serious offence – malicious wounding – simply on the basis that he was to blame for getting drunk. This does not seem right. If the defendant, when he got drunk, did not foresee the risk of other people coming to some physical harm as a result, he is being found guilty of an offence for which such foresight is required when he had no such foresight. He is being found guilty because he is prevented, under the Majewski rule, from denying that he had such foresight. Convicting someone on the basis of a fiction seems very unsatisfactory. It looks like the defendant in Darts is being convicted on a constructive basis – he did something bad when he got drunk, and then the offence he ends up being convicted of depends on the level of harm that resulted from his getting drunk without any requirement that he needs to have foreseen that harm.

(4) The workings of the above rules seems to produce some arbitrary results. Consider:

Tramp 1. Two tramps, Vladimir and Estragon, get very drunk and take a lot of drugs and fall asleep near each other. Vladimir wakes up, still intoxicated, and thinks that the sleeping Estragon beside him is a writhing mass of snakes that are about to attack him. Vladimir panics, pours the remaining alcohol near him onto Estragon and sets it on fire. Estragon dies. Vladimir is charged with murder but is acquitted on the basis that he lacked the mens rea for murder: he did not have an intent to kill a life in being. See R v Lipman.

Tramp 2. The same facts as Tramp 1, but in this case when Vladimir wakes up, he wrongly thinks that Estragon is attacking him with a knife. Vladimir strangles Estragon. Vladimir is charged with murder and is convicted on the basis that he had the actus reus for murder (he caused Estragon’s death), and the mens rea for murder (he intended to kill Estragon), and he can’t rely on his mistaken belief that he thought that Estragon was attacking him because that mistaken belief was the result of his intoxicated state, and he was to blame for being intoxicated. See R v O’Grady; R v Hatton.

But what, morally, is the difference between Tramp 1 and Tramp 2 that would justify us in acquitting Tramp 1 of murder, and finding Tramp 2 guilty? The treatment of Tramp 2 looks even more arbitrary given the fact that under Gladstone Williams a non-intoxicated but still stupid belief that one is about to be attacked might entitle a defendant to be acquitted of murder.