intoxication evaluation

appears to contradict fundamental principles of mens rea

• in cases of voluntary intoxication, the defendant is treated as having the necessary mens tea for a basic intent crime because they were “reckless” in becoming intoxicated in the first place, as established in DPP v Majewski.

• This may conflict with the contemporaneity rule, which required the actus reus and mens rea to coincide.

• however, this approach can be justified in fairness grounds, as it would be too lenient to allow a defendant to escape liability simply because they voluntarily intoxicated themselves before committing the offence

• the courts have therefore treated the entire process as a “continuing act”, allowing the earlier recklessness to satisfy the mens rea requirement

distinction between basic and specific intent crimes exists almost solely for the purpose of the intoxication defence and is neither logical nor consistently applied

• in principle, all offences already have a clearly defined mens rea, either through statute or common law

• the majewski approach allows recklessness to substitute for the required mens rea in basic intent crimes, which can be seen as artificial

• however, supporters argue that this approach is practical and fair, as it prevents defendants from benefiting from their own wrongdoing

• it also serves as a warning that those who voluntarily intoxicate themselves will be held responsible for at least basic intent crimes

law does not distinguish between defendants who drunk to the point of losing control and those who merely go out intending to enjoy themselves

• both are treated the same under the law, despite potentially differing levels of blameworthiness

• this could be seen as unfair, particularly where loss of control was not intended

• however, distinguishing betweeen different attitudes to intoxication would be extremely difficult for juries and could make the defence overly complex and uncertain in practice

for some specific intent crimes, there is no corresponding basic intent offence, meaning intoxication can operate as a complete defence

• this results in inconsistency, as intoxication is a partial defence for some crimes but a complete defence for others

• critics argue this undermines fairness

• however, allowing a complete defence in such cases may be preferable to convicting a defendant of an offence that requires a level of intent they genuinely did not possess

• additionally, concerns that this could encourage offenders to intoxicate themselves deliberately are addressed by the courts rejection of the “dutch courage” defence, as seen in AG for Northern Ireland v Gallagher

recommendations for reform were made by the Law Commission Consultation Paper 1993

• the paper heavily criticised the rules set out in DPP v Majewski and suggested that they should be abolished

• this means that intoxication (vol and invol) should become a total defence, as in australia and new zealand

• it also recommended that the rules should be abolished and replaced by a new offence that of causing harm whilst deliberately intoxicated

• after criticism the Law Commissions changed their mind in their report in 1995 which concluded that the Majewski rules are fair and worked well