"It wasn't me your honour...it was the drink"

A traditional plea of mitigation in relation to offences conducted under the influence of alcohol. But what is the legal position? Are people under the influence regarded as not being fully responsible for offences committed while in that state? Or is being under the influence, or at least drunk, regarded as an additional offence rather than as an excuse for the first.

These questions may have a particular importance In the alcopop era given, for example, that in these drinks the taste of alcohol is typically disguised, possibly making it difficult for people to know whether or to what degree they are under the influence.

Here, Dr Slapper, Principal Lecturer in Law, Staffordshire University, explains how the new kind of drinks could lead users into a difficult legal area.

Alcopops over popcorn?

Every year desk sergeants record the details of tens of thousands of alcohol-related offences. In such a setting, the recent profusion in the drinks market of alcopops and ready-mixed sweet cocktails can be seen as fuelling an already significant problem.

Last month a publican and his wife from Ormskirk in Lancashire were fined £7,820 and lost their licence after Graham Bailey, a boy they had served alcopop drinks, was hit by a train after leaving their pub very drunk. At the time of the decision by Ormskirk magistrates, yet another new alcoholic product apparently aimed at children – a vodka and raspberry ice pop – was coming under investigation.

The proliferation of alcopops is likely to increase alcohol-related offending, both by people who know what they are drinking and by others who become involuntarily intoxicated. It may be seen as alarming in this context that both voluntary and involuntary intoxication are valid defences to many criminal charges.

Alcopops, which generated profits of more than £280 million last year, have an alcoholic content higher than that of most beers and lagers but with strong flavours like vanilla or lemonade it is quite possible to drink such a product without realising its true content.

In many types of crime, the prosecution has to prove that the defendant had a particular frame of mind, such as intention or recklessness. Where a defendant has the stipulated attitude, it is irrelevant whether or not he or she was drunk. He cannot be heard to say that he would never have behaved as he did were he sober.

In one case, a man gave way to his paedophiliac inclinations only, he said, because someone had laced his drink with sedatives. The drink had been surreptitiously spiked by a business enemy specifically to help to procure sexual acts with a 15-year-old boy that were to be recorded and used in a blackmail scheme. The defendant was convicted at Lewes Crown Court of indecent assault but his conviction was at first quashed by the Court of Appeal, which took the view that a man could not be convicted where his otherwise-controlled desires were released through the secret administration of a disinhibiting substance "because the operative fault is not his".

The House of Lords restored the conviction and stated that when the defendant committed the indecent assault, though he would not have acted as he did were he sober, he did know what he was doing when he behaved sexually with the boy. The Lords adopted a dictum from another case that "a drunken intent is still an intent".

Where, however, through involuntary intoxication, a person does not have the required mental element for a crime, the prevailing view is that there should be an acquittal.

Yet the courts have been very cautious about the notion of involuntary intoxication. In one case a man charged with indecent assault argued that he had not known what he was doing. He admitted to having been drinking in a pub but claimed that wine he had drunk afterwards had contained more alcohol than he had realised. The Court of Appeal rejected this argument, ruling that where a person has been voluntarily drinking even a little alcohol, he was not permitted to argue that intoxication was involuntary simply because he had underestimated the amount or strength of alcohol he was imbibing.

Where a defendant commits a crime while drunk, his intoxication will not afford him a defence if he has been charged with an offence for which the prosecution need prove only recklessness. Indeed, in such a case anyone arguing that through his own efforts he had become so drunk as not to appreciate what he was doing will be condemning himself of recklessness. By contrast, where a defendant is facing a serious charge such as murder, requiring proof of a specific intention, then his intoxication at the time of the crime can be a defence if it prevented him having the relevant information.

The concession to people charged with "specific intent" – broadly, the most grave crimes – arose in the early 19th century as a way of allowing defendants to avoid being hanged or transported if they were too drunk when committing an offence to have been seen as coldly wicked.

In some circumstances, of course, being affected by alcohol is an integral part of an offence. The Road Traffic Act of 1988 for example, includes several offences such as driving or being in charge of a vehicle while under the influence of drink or drugs.

Here, victims of laced drinks cannot escape conviction, although the courts can be sympathetic. In one case a man in a pub who had drunk beer moderately, then ordered a tonic water, had had his last drink laced with vodka by a woman planning to reveal the trick before he left. She wanted him not to drive back to his home but to sleep with her and she expected that when told of the vodka he would not risk the drive. He left before she had a chance to tell him, but though he was convicted of a drink-driving offence, he was given an absolute discharge.

There have been various reports recommending legal reforms in this area. The Law Commission has rejected the idea of replacing the existing law with a new offence of "criminal intoxication" and recommended instead a series of revisions to today's rules.

After recent disturbing news, such as the findings of Swansea's Centre for Substance Abuse Research that 55 per cent of 11 to 16-year-olds are regular drinkers of alcohol (rising to 71 per cent of 16-year-olds), George Howarth, the Home Office Minister, has begun an inquiry on this issue. Whichever way the law is finely tuned, deeper social questions need to be asked about why a generation of children has come to favour alcopops over popcorn.

Reproduced by permission of Dr Garry Slapper andThe Times Newspapers Limited.