Evaluation of the defence of intoxication

Ignores correspondence principle

• actus reus and mens rea of offence don’t coincide

• Majewski guilty of basic intent offence as getting drunk classed as reckless conduct

  • this ignores principle as the decision to drink may have been several hours before a crime

• this can be seen in O’Grady where D fell asleep drunk and committed offence of hitting friend some hours afterwards

unfair in regard to mens rea

• normally where recklessness sufficient for MR it has to be proven that D knew there was a risk of specific offence being comitted

  • HOWEVER recklessness of becoming drunk means that D has taken a risk of doing something stupid, unfair as D didn’t actually realise there was a risk of doing something stupid

• this can be seen as unfair as lower mens rea (no need for recklessness) than in normal circumstances

• considered by law commission saying that majewski rule is ‘arbitrary and unfair’ HOWEVER this received a lot of criticism so they changed their standing

There are issues with involuntary intoxication

• D guilty if formed necessary MR before becoming II

  • law ignores that D not to blame for the intoxication - Kingston

• HOWEVER for basic intent offences D would not be guilty where prosecution relies on recklessness - Hardie

  • this is unfair on Ds in Kingston’s situation

Lacks clarity on explanations of basic and specific intent crimes

• this conflicts obiter dicta in Caldwell

Fallback offences

• some specific intent offences act as a fallback

  • where they use defence of intoxication to be found guilty of a lower basic intent crime

  • murder → manslaughter (Sheehan and Moore)

• this can be seen as unfair as for other crimes no fallback like theft so D gets a full acquittal

  • no justice for V

unclear distinction between voluntary and involuntary intoxication

• law commission tries to solve this by listing situations which would count a involuntary intoxication like:

  • forced to take drugs, spiked, takes for medical purpose, believes substance was not an intoxicant

• it should be taken into account in deciding whether D acted with required mens rea, confirming the law set out in Kingston