Drunkenness, intoxication and criminal liability

By Gavin Dingwall*
Reader in Law,
De Montfort University, Leicester

The statistics make grim reading. Research has consistently shown that a high proportion of offenders drink prior to offending (Dingwall, 2006, chapter 2). To take but one example, the 2000 British Crime Survey found that the offender was ‘under the influence of drink’ in 40% of violent incidents (Budd, 2003: 2). On a daily basis, therefore, criminal courts have to deal with individuals who had been drunk at the time that the incident took place.
A suitable response has to be found.

This has not proved easy. Usually the criminal law does not just penalise harmful conduct. In most cases, particularly with more serious offences, there is an additional requirement that the individual has to intend to commit that harm or is at least reckless that the harm would materialise. If an individual causes the prohibited harm but without the necessary mental state then he is entitled to an acquittal. Drunkenness in itself is not problematic. The law is quite clear that ‘drunken intent is nevertheless an intent’ and the jury are directed on this basis (Sheehan and Moore [1975] 2 All ER 960). The defendant will, therefore, not be entitled to an acquittal if he tries to argue that he would not have committed the offence if he had been sober if he still had the required mental state (Kingston [1994] 3 All ER 353).

The situation becomes more problematic where an individual is so intoxicated that he can form no intent whatsoever. Ordinarily, if someone does not form the required mental state, standard criminal law principle would suggest that he is entitled to an acquittal. However, many people would argue that intoxication should be treated as an exception because the individual is (almost invariably) responsible for his condition. This, though, does not get round the fact that he was incapable of satisfying a standard requirement of criminal liability. A number of different responses have emerged internationally. In Scotland, for example, intoxication is always irrelevant in determining criminal liability. Even in a murder case, the jury have to disregard the fact that the defendant was intoxicated at the time. Conversely, some jurisdictions (e.g. New Zealand) allow juries to consider evidence of intoxication in order to decide whether or not the defendant had the necessary mental state for all offences which specify a particular stateof mind.

The position in England and Wales

In this jurisdiction the position is something of a half-way house. Evidence of intoxication can be considered for some offences but not for others (the case which is usually cited for authority for this is DPP v Majewski [1976] 2 All ER 142 although the roots of the doctrine go back far further: Singh, 1933). Offences are divided into two categories – those requiring a ‘specific’ intent and those requiring a ‘basic’ intent. If the offence requires a ‘specific’ intent, e.g. murder, then the jury may consider evidence relating to intoxication in order to decide whether or not the defendant possessed the required mental state. It should be emphasised that this does not mean that every defendant who is being tried for a ‘specific’ intent offence is going to be acquitted if he was drunk at the time of the offence. The evidence will be considered and only if he did not form the required mental state will he be acquitted (Sheehan and Moore [1975] 2 All ER 960).

If the offence is one of ‘basic’ intent, evidence of voluntary intoxication cannot be considered. However grave the charge, the evidence is deemed irrelevant. Given this structure, it is obvious that the definitions of ‘specific’ intent and ‘basic’ intent are of paramount importance. In Majewski [1976] 2 All ER 142, the judges considered this issue carefully but came up with different definitions. It is certainly true that some of the current categorisations are, therefore, problematic in terms of criminal law theory (Dingwall, 2006: 107-109) but, in practical terms, there is no real confusion as the courts have determined on a case-by-case basis which offences fall into each category.

Can the English position be defended? It could be argued that the English model represents a pragmatic compromise. An individual who killed whilst in a very intoxicated state might be acquitted on a murder charge but would be convicted of manslaughter. It could be argued that this better reflects the culpability of a severely intoxicated individual who kills unintentionally. There is also the added benefit that manslaughter does not carry a mandatory life sentence; the judge has discretion, therefore, to arrive at an appropriate sentence.

This defence, though, is not without flaws. Not all ‘specific’ intent offences are underwritten with a corresponding ‘basic’ intent offence. An obvious example of this is theft. Secondly, the approach rests on a fiction. For certain offences, where a particular state of mind (e.g. recklessness) has to be proved, the prosecution do not have to prove it if the defendant was intoxicated. Some have argued that intoxication equates to recklessness and that this is not problematic. However, this uses the term recklessness in a far wider sense than is usual in the criminal law. Ordinarily the recklessness has to be about a particular result occurring, here the recklessness would appear to be about getting intoxicated.

I have argued elsewhere (Dingwall, 2006: 118-125) that a better response would be to allow evidence of intoxication to go before a jury in all cases where a particular state of mind has to be proved by the prosecution (as say in New Zealand). The current distinction between offences of ‘specific’ intent and ‘basic’ intent in England and Wales rests on a fiction and has little to commend it. Under this alternative model, if the jury decide that the defendant did have the required state of mind then he should be convicted of that offence. However, I would propose creating a specific criminal offence of causing harm whilst intoxicated to deal with those who are acquitted of the primary offence. I am not the first to suggest such an option (the Law Society did in1993 but backtracked in 1995).It also operates in some other jurisdictions (e.g. the offence of total intoxication in s.323a(1) of the German Criminal Code). The attraction of this approach is that the offence targets what is culpable in such a scenario – the defendant intentionally orrecklessly getting intoxicated.

A note on rape

The Government have recently launched a campaign highlighting the possibility that men who have sex with intoxicated women will be guilty of rape. In light of this, the position with regards to rape deserves separate comment. For the purposes of s.1 of the Sexual Offences Act 2003 a person (A) commits rape if –

(a) he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis,

(b) B does not consent to the penetration, and

(c) A does not reasonably believe that B consents.

There are two issues regarding consent: firstly, whether B does in fact consent to the penetration and, secondly, whether or not A reasonably believes that B consents. The Act expands on both of these issues (Tempkin and Ashworth, 2004). With regards to whether there is consent present, there is a general definition of ‘consent’, which is a notoriously difficult philosophical concept (Dingwall, 2002; Schulhofer,1998). Section 74 states that ‘a person consents if he agrees by choice, and has the freedom and capacity to make that choice’. There are further sections which provide scenarios where there will definitely be no consent (s.76) or where there will be an ‘evidential presumption’ that consent was lacking (s.75). In what circumstances will it be relevant that B had been drinking? With regards to s.74 the jury will have to determine whether or not B ‘agrees by choice’ and had ‘the freedom and capacity to make that choice’. This does not mean that every time B has been drinking she loses the freedom and capacity to decide whether to have sexual intercourse. It is suggested that the freedom and capacity to make such a choice is only lost when she is incapacitated by the alcohol. This is a question of fact for the jury to make. There are also two ‘evidential presumptions’ which could be relevant. If the complainant was asleep or ‘otherwise unconscious at the time of the relevant act’ (s.75(2)(d)) or if ‘any person had administered to or caused to be taken by the complainant, without the complainant’s consent, a substance which…was capable of causing or enabling the complainant to be stupefied or overpowered at the time of the relevant act’ (s.75(2)(f)) then there will be no consent unless sufficient evidence is adduced to raise an issue that there was consent (Finch and Munro, 2004). It is suggested that in these situations it would be exceptionally difficult to raise an argument that B was consenting.

If B does not consent to the penetration, it has to be shown that A does not reasonably believe that B consents. Rape traditionally has been regarded as a crime of ‘basic’ intent (Fotheringham (1988) 88 Cr.App.R. 206) and it seems logical that the defendant’s intoxication cannot be taken into consideration in determining whether his belief that B was consenting was reasonable. The campaign is to be welcomed in that it publicises how intoxicated men cannot rely on evidence of intoxication to show that they believed that the complainant was consenting. At the same time, it has to be recognised that drunkenness and incapacitation are not synonymous, and that only the incapacitated cannot consent to sexual intercourse.

I wish to thank my colleague Alisdair A. Gillespie for his comments on a draft of this article. All errors remain my responsibility.

References

Budd, T. (2003) Alcohol-Related Assault: findings from the British Crime Survey London: Home Office

Dingwall, G. (2006) Alcohol and Crime Cullompton: Willan Publishing

Dingwall, G. (2002) ‘Addressing the Boundaries of Consent in Rape’ 13(1) King’s College Law Journal 31

Finch, E. and Munro, V.E. [2004] ‘The Sexual Offences Act 2003: intoxicated consent and drug assisted rape revisited’ Criminal Law Review 789

Law Commission (1995) Intoxication and Criminal Liability Law Commission Report No.229 London: HMSO

Law Commission (1993) Intoxication and Criminal Liability Law Commission Consultation Paper No.127 London: HMSO

Schulhofer, S.J. (1998) Unwanted Sex: the culture of intimidation and the failure of law Cambridge, Massachusetts: Harvard University Press

Singh, R.U. (1933) ‘History of the Defence of Drunkenness in English Criminal Law’ 49 Law Quarterly Review 528

Tempkin, J. and Ashworth, A. [2004] ‘The Sexual Offences Act 2003: (1) Rape, sexual assaults and the problems of consent’ Criminal Law Review 328