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Intoxication is Never a Defence
Abstract
This article considers the intoxication doctrine, including whether it is evidential or substantive in nature, and what work is done by the basic-versus specific intent distinction. Most importantly, the article analyses the structure of the doctrine itself. Sometimes thought of as a defence, the article argues that it is an entirely different kind of doctrine, one that imposes constructive liability uponoffenders. Once this is seen, we can better assess its rightful place in the law.
... But the use of the term "defence" here is imprecise, and to the extent that it implies a supervening defence, it is misleading. 82 In reality, whenever D denies the elements of a crime, she is simply denying the prosecution case against her: she is denying the essential elements of inculpation. Thus, where intoxication rules apply to find liability despite the successful denial of offence elements, this is not about the denial of a defence, this is logically about the construction of a crime. ...
This article explore the relationship between the structural understanding of crimes (i.e. the identification of offence elements) and the development of the definitional general part (i.e. how offence elements should be defined and applied). In particular, I am concerned with 'multi-event' offences, where D's ulterior mens rea relates to a future conduct event to be completed by D or another. This includes inchoate offences such as conspiracy; complicity liability; as well as so-called prior fault criminalisation. I contend that structural misunderstanding of these offences has led to a definitional deficit, creating a series of (seemingly) intractable problems that can only be addressed through a reimagining of the definitional general part. Within this article, I am concerned with the relationship between the structural understanding of crimes (i.e. the identification of offence elements) and the development of the definitional general part (i.e. how offence elements should be defined and applied). 1 I argue that current definitions of core criminal law concepts-including mens rea terms and causation-are derived from a paradigmatic understanding of offence structure that centres upon a single conduct event (single-event crimes); and that as a result of this, such concepts are often ill-suited for application to alternative structures (multi-event crimes). By multi-event crimes I mean any offence where a future conduct event either must be contemplated by the defendant (e.g. conspiracy, and many other inchoate offences), or must be completed in fact (e.g. complicity, and associated crimes). This thesis is part structural, highlighting and clarifying the full range of offence elements contained within a multi-event offence; and part definitional, exposing the conceptual and practical difficulty of applying single-event concepts to that range of multi-event elements. In abstract, it is a thesis that risks appearing (perhaps overly) removed from the substance of the criminal law. However, as I will demonstrate, it has very real *Crim. L.R. 379 implications for the interpretation and application of multi-event crimes, as well as for how we should approach their potential reform. When analysing and applying multi-event crimes-conspiracy, assisting and encouraging, complicity, and so on-difficulties in the interpretation of key concepts can appear unique to the particular offence. For example, we would not typically associate uncertainties in the role of causation in complicity cases with uncertainties about a defendant's mens rea for an agreed offence in the context of conspiracy. And yet, these and other problems are of a similar type, resulting from the application of general part concepts (in this case, causation and intention) to an offence structure for which they are not suitable. The problem is one of square peg concepts being forced into round hole offence structures.
... However, as Bal (2005) and Taipale (2019b) have identified, even in inquisitorial jurisdictions, competing experts are often employed. 2. It is not always the case that intoxication cannot be used as a legal defence; see for instance Simester (2009). Additionally, the Ontario Court of Appeal have recently reiterated that voluntary intoxication to the point of automatism can constitute a defence (DiManno, 2020). ...
The sexual assault trial of R v Hartman included evidence from a sleep expert who found himself increasingly marginalised within the scientific community. Marginalisation takes place following a scientific controversy, when those considered to be on the losing side find it increasingly difficult to be heard by the community, and in particular, their ideas are removed from core texts in the field. Given a marginalised expert's ambiguous status, and a scientific knowledge deficit on the part of legal actors, on what grounds does a judge base their decision around the evidential value of their testimony? An analysis of the judge's decision in the trial indicates that she evaluated the expert's evidence by employing a version of a socio-technical review that included expectations of scientific rigour based on mechanical objectivity and procedural correctness. Drawing upon these processes and expectations of sound science, the judge had little difficulty evaluating the expert's evidence and finding it unsafe. In particular, she drew attention to the expert's mobilisation of a conspiratorial discursive style, a product of his marginalisation. This supports certain STS claims that legal actors already have tools for evaluating appropriate expertise, and these continue to be the cornerstone of judicial decision-making around expert testimony, even in highly ambiguous situations like post-controversy science.
... This is problematic because it wrongly implies that completing the actus reus of an offence is sufficient for inculpation and also because it obscures the role of intoxication in creating the basic ingredients of liability rather than operating as a tool of exculpation. 23 Within academic and policy writing, commentators have proposed to either remodel the current law to achieve a more plausible case for equivalence, 24 or contended that current rules should be abolished and replaced with a new intoxication offence to more accurately target and label offenders for the wrongs they have committed. 25 (ii) Prior-fault in blocking defences Prior-fault rules also emerge to impact the application of criminal defences, blocking or amending the potential for defences at T2 based on D's previous conduct at T1. ...
This article explores the contested legal conceptualisation and application of “prior-fault” rules in England and Wales, Germany and the Netherlands. Prior-fault rules operate as an exception to the traditional application of criminal offences and defences, allowing a defendant’s previous conduct outside of an offence or defence definition to directly affect his or her liability. The paradigm example of this is prior-fault intoxication, where an intoxicated defendant is found liable for an offence despite lacking mental fault at the time of causing harm; with the missing mental fault effectively substituted by their previous choice to become intoxicated. However, as we discuss, prior-fault is not necessarily limited to such examples and has the potential to operate across a broad range of criminal rules. Through the comparison of jurisdictions, each with varying doctrinal applications of prior-fault, the article seeks both to better understand the concept as well as to analyse the most effective and defensible methods for its application in practice.
... In certain jurisdictions this has even led to the rejection of prior-fault intoxication rules altogether; for example, in New Zealand and the Australian state of Victoria. Detailed review of the legal arguments and concerns about the prior-fault rules as currently applied is beyond the scope of our debate here, and we direct the interested reader to published works by others [24,25], as well as our own [26][27][28]. Instead, we focus here on a preliminary question that seems (perhaps surprisingly) to have rarely troubled courts; namely, when do we classify a defendant as 'intoxicated' such that the prior-fault rules apply? ...
Background:
In the recent case of R v Taj, the Court of Appeal of England & Wales upheld the conviction of a defendant who, in a psychotic delusional state, mistook his non-threatening victim to be a terrorist, violently attacking him. The law typically allows honest mistakes (even if unreasonable) as a basis for self-defence (in this case the defence of others). But because Taj's delusions were found by the court to have been caused by voluntary alcohol consumption, special legal (prior-fault) intoxication rules were applied to block his defence; Taj was convicted and sentenced to 19 years for attempted murder.
Argument:
We focus here on the simple question - what does it mean to be intoxicated? On the facts, Taj did not have drugs active in his system at the time of the attack, but the court nonetheless insisted that Taj's delusional mistake was 'attributable to intoxication', namely to drink and drug-taking in the previous days and weeks. This extended conception of intoxication was questionably distinguished from psychosis induced by withdrawal. Furthermore, the court was unreceptive to evidence of a long-standing, underlying mental health disorder. We argue that the court's expanded view of intoxication is problematic in that intoxication-induced psychosis cannot be sharply distinguished from other causes such as mental disorders. And even if it could be distinguished, it should not give rise to blame and punishment in the same way as conduct induced by chemically active intoxicants ('drug-on-board') does.
Conclusion:
The courts' expansion of the definition of intoxication is both legally and forensically problematic, introducing legal vagaries where the clinical science is already vague. And with intoxication frequently interlocking with historic intoxication and secondary or co-morbid mental health conditions, the decision risks inappropriately and/or over-criminalising defendants.
... A position articulated bySimester (2009). ...
The actio libera in causa doctrine, as originally formulated by various Enlightenment philosophers, concerns the imputation of responsibility to actors for actions unfree in themselves, but free in their causes. Like our Enlightenment counterparts, contemporary philosophers of criminal law, as well as most Western legal systems (both common law and civil), allow that persons can be responsible for acts that are not free when performed, provided they were free in their causes. The actio libera doctrine allows us to impute unfree actions to persons, provided they were responsible for causing the conditions of unfreedom that characterizes those actions when performed. This doctrine seems to be instantiated in a great many actual legal practices. But I argue that we must distinguish between two importantly different understandings of the doctrine itself and its application in law. On the one hand, the actio libera doctrine allows us to waive the voluntariness requirement that is generally needed for criminal liability. On the other hand, it disallows defendants to appeal to defences they would otherwise be entitled to use to block liability, if they culpably created the conditions of their own defence. The first case involves rules of imputation, while the second concerns culpability, and justifying the actio libera doctrine therefore faces different challenges in the two cases.
The principle of contemporaneity, which means the actus reus and mens rea must coincide, constitutes the backbone of criminal liability. On the contrary, it is sometimes possible for an offender to commit an offence when she or he does not have the culpability required for the committed offence. The offender can create diminished responsibility through the intake of an intoxicating substance negligently or intentionally, even with the purpose of getting rid of the punishment. To punish such an offender, a legal concept has been developed which is termed as voluntary intoxication in the Anglo-Saxon legal system, while it has been called actiones liberae in causa in the Continental Europe. In this review, actiones liberae in causa, the formulation of voluntary intoxication in the Continental European legal system, will be explained in detail and some suggestions will be made for the application of these two concepts.
In the current era, the law governing how intoxication affects criminal liability is notorious for its complexity and technicality. The law prescribes when evidence of an individual’s intoxication — by alcohol or any other drug — can be introduced in court to show that he or she did not have the mental element or mens rea of the offence. In England and Wales, when such evidence can be introduced is determined by two factors: how the person became intoxicated and the kind of criminal offence they are alleged to have committed. In relation to the way in which the person became intoxicated, a distinction is drawn between self-induced, voluntary or advertent intoxication, on the one hand, and involuntary or inadvertent, intoxication on the other. The legal approach to evidence of voluntary intoxication — the type of intoxication at issue in the vast majority of cases — varies according to the type of offence with which an individual is charged. The Majewski rule (named after the House of Lords’ decision from which it came — DPP v Majewski [1977]) provides that voluntary intoxication may be used to prove that an individual did not form the requisite mens rea for what have been known as offences of ‘specific intent’ (a category that roughly correlates with more serious offences — see Horder, 1995; Williams, Chapter 14 in this volume). By contrast, in relation to a residual category of offences of ‘basic intent’, the individual’s voluntary intoxication cannot be taken into account when determining whether he or she formed the mental state required for conviction.
The current approach of English and Welsh criminal law to the problem of intoxicated defendants is governed by the so-called Majewski rules (first discussed by Loughnan in Chapter 3). Majewski was concerned in a pub brawl, during which he assaulted the landlord, customers and the police officer who arrested him. The following morning he also assaulted a police inspector in a cell at the police station. He was thus charged with three offences of assault occasioning actual bodily harm and three offences of assault on a police officer in the execution of his duty, contrary to s. 51 (1) of the Police Act 1964, but sought to defend himself on the basis that he had been suffering from the effects of alcohol and drugs at the time. The courts deciding Majewski’s case were thus faced with the same dilemma as all courts that deal with intoxicated defendants; on the one hand those who are intoxicated are in general more likely to do more harm, but in each specific case the individual’s culpability in creating the harm may be less than if they had been sober at the time of the offence (see Maguire and Nettleton, 2003; Loughnan, Chapter 3 of this volume).
This article reviews the 2009 Law Commission report on Intoxication and Criminal Liability. Focusing on voluntary intoxication, the article assesses whether the Commission's reformulation of the specific/basic intent distinction will resolve the problems with the current law. Further, it also discusses the Commission's treatment of intoxicated defendants who assist or encourage another person to commit an offence. The article concludes that although the Report sets out a defensible approach, a series of exceptions to that approach ultimately undermine its appeal.
The Exorcist is an exemplar of the classic horror film trope of possession in the 1960s–70s. In the film, Regan's gradual possession by the devil is depicted by signs of transformation. This article explores how the criminal law would categorise and respond to a case of possession. How does the criminal law conceptualise out-of-control bodies? And who (if anyone) is to blame for harm done? The film suggests that Regan's transformation takes place through an agency that lies outside Regan's will, upsetting the Cartesian assumptions that underlie both the law and mainstream culture, concerning the division between mind/body and the supremacy of the mind in its regulation of physical states. Bodies out of control are categorised at law as involuntary. The concept of voluntariness is itself transgressive of organising concepts within criminal law, including the oppositional structures of actus reus and mens rea, and offences and defences. Additionally, I highlight the ways in which voluntariness operates at the fissures of structural distinctions of criminal law, including the therapeutic and the punitive, tort and crime, and the structural separation of suffering and wickedness.
The fields of tort and crime have much in common in practice, particularly in how they both try to respond to wrongs and regulate future behaviour. Despite this commonality in fact, fascinating difficulties have hitherto not been resolved about how legal systems co-ordinate (or leave wild) the border between tort and crime. What is the purpose of tort law and criminal law, and how do you tell the difference between them? Do criminal lawyers and civil lawyers reason and argue in the same way? Are the rules on capacity, consent, fault, causation, secondary liability or defences the same in tort as in crime? How do the rules of procedure operate for each area? Are there points of overlap? When, how and why do tort and crime interact? This volume systematically answers these and other questions for eight legal systems: England, France, Germany, Sweden, Spain, Scotland, the Netherlands and Australia.
Whether it is a question of the age below which a child cannot be held liable for their actions, or the attribution of responsibility to defendants with mental illnesses, mental incapacity is a central concern for legal actors, policy makers, and legislators when it comes to crime and justice. Understanding the terrain of mental incapacity in criminal law is notoriously difficult; it involves tracing overlapping and interlocking legal doctrines, current and past practices including those of evidence and proof, and also medical and social understanding of mental order and incapacity. Bringing together previously disparate discussions on criminal responsibility from law, psychology, and philosophy, this book provides a close study of mental incapacity defences, analysing their development through historical cases to the modern era. It maps the shifting boundaries between normality and abnormality as constructed in law, arguing that 'manifest madness' - the distinct character of mental incapacity revealed by this interdisciplinary approach - has a broad significance for understanding the criminal law as a whole.
In English law, mens rea terms can be defined differently depending on the context. This article attacks this approach, arguing that it pays insufficient attention to the criminal law's twin needs to communicate effective guidance to citizens who wish to avoid punishment, and to control the discretion accorded to the criminal law's institutions. It would be preferable to have clear definitions of mens rea terms applied uniformly across the criminal law. If there are gaps, these ought to be filled by additional mens rea terms. The practical issues raised by this argument are considered briefly.
This article examines the evidential and procedural aspects of claims based on mental incapacity in English courtrooms in the ‘long’ eighteenth century. It employs a three-dimensional frame the author has termed ‘manifest madness’ to analyse how such claims were articulated and elaborated at trial in this period. This analysis reveals first, the substantive significance of the accused’s conduct, second, the part played by ordinary people and, third, the role of collective knowledge of madness in evidence and proof of mental incapacity for criminal law purposes. By reference the law on what would now be called unfitness to plead, automatism and intoxication, this article demonstrates the utility of the ‘manifest madness’ frame for understanding the evidential and procedural practices attendant to mental incapacity claims in this period. The article considers the insights this historical analysis provides into current criminal process as it relates to proof of mental incapacity.
The paper consists of three parts. Part I lists the assumptions about alcohol made by judges and legal academics and traces those assumptions back to their medical and ideological roots in the 19th century. Part II then contrasts those assumptions with the scientific evidence on the relationship between psychoactive drug use and violent behavior, recklessness, intention, cognitive ability, memory, automatism, and insanity. The evidence presented in Part II indicates that important discrepancies exist between the empirical evidence and the legal assumptions about intoxication. Relevant cases are canvassed to demonstrate that the facts in such cases are consistent with the scientific findings but often inconsistent with the legal decisions. Finally, Part III analyses the function in criminal court served by medical testimony on intoxication. It is suggested that medical testimony on this issue is frequently biased and inappropriate and that such testimony should be minimized or eliminated entirely.