Intoxication as a Defense Against Criminal Liability Essay
Intoxication as a Defense Against Criminal Liability
Intoxication with alcohol and drugs is commonly associated with crimes of violence. The relationship between intoxication and criminal culpability is complex especially if a mental condition legal defence is being considered. The apparent stimulating effect of alcohol is due solely to the fact that it deadens the higher control centres and progressively the other centres as well, thus weakening or removing the inhibitions that normally keep us within the bounds of civilised behaviour. The main highlight of this research paper will be to enunciate various legal defences available to an intoxicated offender under Indian law (Indian penal code) as well as other Common Law countries and to propose legal reforms to fill in loopholes associated with intoxication against criminal liability because a common man will not have much regard for the law if a drunken man batters him, and the man gets away with his conduct merely because he was too intoxicated to think clearly.
The hypothesis of my research paper would be:
“the public is injured by the criminal act whatever the state of the criminal mind”
“…death is final. This finality makes it proper to regard death as the most serious harm that may be inflicted on another, and to regard a person who chooses to inflict that harm without justification or excuse as the most culpable of offenders.”1- Professor Ashworth Intoxication or Drunkeness2 is of exceptional theoretical importance for the criminal law not only because it involves the basic postulates of liability, but also because it constitutes an essential feature of numerous fact-situations whose impact on the rules has had curious and instructive effects3. On perhaps no other legal issues have courts so widely differed, or so often changed their views, as that of the legal responsibility of intoxicated offenders.4 Intoxication presents problems in theory of responsibility. A man who commits a crime under the influence of alcohol may have otherwise led a normal and responsible life. His acts committed under the influence of alcohol may not reflect his real character.
It could have been a mere aberration in his life. Convicting a person who commits a crime under the influence of alcohol like all other offenders may appear to be harsh but on the other hand, it is not uncommon for offenders to consume alcohol before committing an offence. Hence, it may not be in the interests of the general society to treat intoxication as a general defence. This is because, a man by consuming alcohol and becoming intoxicated voluntarily, impairs his own self control and good judgment5. Section 85 and 86 of the Indian penal code deal with intoxication as an extenuating factor. A combined reading of ss 85 and 86 reveals that the former lays down the law relating to involuntary intoxication6 or drunkenness as a defence to criminal charge, while the latter deals with criminal liability of a voluntary intoxicated7 person when he commits an offence under the influence of self-administered intoxicant.
Section 85 accords immunity from criminal liability to a person intoxicated involuntary. Section 86 provides for a limited exemption from criminal liability to a self-intoxicated person. The issue of how the law should treat self-induced intoxicated offenders has been with us for hundreds of years. At the heart of the controversy is a clash between the philosophy of criminal liability and certain principles of public policy: (1) It is a fundamental element of criminal responsibility that a person should only be held accountable for criminal conduct if that person acted voluntarily and intentionally. (2) There is, on the other hand, a general expectation amongst the community that the law will: (a) protect the community against criminal conduct committed by offenders who have freely chosen to become intoxicated; and (b) penalise self-induced intoxicated persons who commit criminal acts.8
The basic doctrine of intoxication defence has been laid down in British cases. India, being a common law country, derives most of its modern judicial framework from the British legal system.9 Intoxication as a defence to a criminal charge gradually developed as the law became more concerned with the mental element in crime. Today, while most common law jurisdictions recognise some form, albeit often limited, of intoxication defence, legislators and jurists throughout the common law world, nevertheless, have difficulty defining the appropriateness and the parameters of such a defence. In its formative period and into the twentieth century, the defence concentrated on drunkenness rather than on the effect of other drugs on the mental process. In 1969 in England9 it was held that the same principles apply to intoxication by drugs other than alcohol.
In that case the defendant killed his companion when he was under the influence of LSD, hallucinating that he was fighting snakes in the centre of the earth. He was convicted of constructive manslaughter because he had committed an unlawful act, and sentenced to six years’ imprisonment. Two later decisions, Bailey10 and Hardie11, suggest that drugs must be divided into two categories. Where it is common knowledge that a drug is liable to cause a person to become aggressive or do dangerous or unpredictable things, that drug is to be classed with alcohol. But where there is no such common knowledge, as in the case of a sedative drug, different rules apply.
Smith and Hogan point out that there are obvious difficulties about classifying drugs in this way and, if the distinction were to survive at all, it would not be surprising if it led to further case-law.12 Furthermore, there is no evidence that the distinction was ever made in this jurisdiction. Today, the defence is generally understood to encompass both alcohol and other drugs and . While the consumption of alcohol is to a great extent socially acceptable and its use or possession not legally prohibited (or at any rate, prohibited only in conjunction with certain activities as with being in control of a vehicle while intoxicated), this is not the case with other drugs.
Nevertheless, it is appropriate to consider intoxication by alcohol and other drugs as being equal for the purposes of the intoxication defence, as the relevant consideration is whether the accused had the requisite mental element for the offence charged or acted voluntarily. Where the use or possession of the substance concerned is proscribed by law, then that is a separate issue and should be dealt with in the usual way under the misuse of drugs legislation. Chapter 2 desrcibes in detail the concept of intoxication and historical development of intoxication defences and the extent to which intoxication may support a defence. In Chapter 3 a comparative analysis of intoxication defence is done with other common law countries Chapter 4 contains conclusion and suggested reforms.
Research Methodology: Primarily the research will be based on secondary data. This will consist of the quantitative and qualitative data. For quantitative data census and other organizational records will be used and for qualitative data the focused group discussions shall be referred to. Secondary data comprises of journals, web pages, Consultation papers, law commissions reports. Next step involves defining a settled law by analysing various judgments and An attempt has also been made to examine the judicial responses to preferential policies adopted by India and other common law countries.
Bottom line: Being drunk is often used as an excuse for what happened the night before. But if what happened is a crime, being drunk will not be a defense.
CHAPTER-II THE DEVELOPMENT OF THE DEFENCE IN THE COMMON LAW COUNTRIES/ Intoxication : Elements of defense
The law is primarily concerned with human affairs. I believe that the main object of our legal system is to preserve individual liberty. One important aspect of individual liberty is protection against physical violence. If there were to be no penal sanction for any injury unlawfully inflicted under the complete mastery of drink or drugs, voluntarily taken, the social consequence could be appalling. – Lord Simon in DPP v Majewski Historical Review
The Law Prior to the Nineteenth Century
In England prior to the early nineteenth century, early notions of retribution and punishment resulted in evidence of self-induced intoxication being regarded as no excuse for a criminal offence. A person who voluntarily consumed alcohol with the consequence that his or her will-power was destroyed was in no better position with regard to criminal acts than a sober person. Early courts expressed the view that the taking of alcohol was in itself a blameworthy act. One of the first statements of the law concerning intoxication can be found in the sixteenth century case of Reniger v. Feogossa: If a person that is drunk kills another, this shall be felony, and he shall be hanged for it, and yet he did it through ignorance, for when he was drunk he had no understanding nor memory; but inasmuch as that ignorance was occasioned by his own act and folly, and he might have avoided it, he shall not be privileged thereby.
The writings of prominent authorities of the sixteenth and seventeenth centuries76 also indicate that the prevailing legal principle was that a person who committed a criminal offence was not to be excused on account of a condition brought about by his or her own fault. However some authorities went further and treated drunkenness as an aggravation of an offence. In 1603 in Beverley’s Case77 not only was drunkenness described as providing no excuse to a criminal offence, but it was given the status of an offence in itself with the consequence of aggravating the criminal offence committed. In the early part of the seventeenth century, the eminent English jurist Sir Edward Coke expressed a similar view78: As for a drunkard who is voluntarius daemon, he hath no privilege thereby, but what hurt or ill soever he doth, his drunkenness doth aggravate it. Other distinguished English legal writers, including Sir William Blackstone79 ,Joseph Chitty80 and William Russell,81 later expressed similar sentiments.
How this proposition operated in practice remains unclear.82 It is possible that ‘aggravation’ referred simply to a judicial discretion to take intoxication into account when sentencing a defendant. Alternatively, it may have been used by the prosecution to show that a ‘defendant was so bad as to really warrant conviction’.83 It should be noted that the suggestion that drunkenness constituted an aggravation of an offence, was omitted from a number of leading authorities during that period, including Sir Francis Bacon,85Sir Matthew Hale86 and William Hawkins.87Hawkins, for example, commented:88 He who is guilty of any crime whatever through his voluntary drunkenness, shall be punished for it as much as if he had been sober. The first modifications to the principle that drunkenness did not constitute an excuse to a criminal offence are to be found in the writings of Matthew Hale,90 who suggested that intoxication could constitute an excuse for a criminal offence if that intoxication rendered a defendant permanently insane, but not if it only led to a condition of temporary insanity.
The Nineteenth Century
During the early nineteenth century, the severity of the common law, which refused to recognise drunkenness as an excuse for any criminal conduct, gradually relaxed with the judiciary adopting a more sympathetic attitude to serious crimes where the penalties were harsh; often involving the death sentence or transportation. The first reported English case to suggest that drunkenness could in some circumstances be taken into consideration when considering a defendant’s culpability is the 1819 case of R. v. Grindley.91 In that case, Mr Justice Holroyd held that, while intoxication did not excuse the commission of a crime, when considering whether the act of murder was premeditated or committed in the heat of the moment, evidence of intoxication should be taken into account.92 The treatment by the courts of intoxication and culpability in the 1830’s was inconsistent. In cases involving self-defence and a defendant’s bona fide belief that he or she was about to be attacked, and cases involving the effect of sudden provocation on a defendant, it was held that drunkenness could be taken into consideration.
In 1830, in Marshall’s case,93 which involved a charge of stabbing, Mr Justice Park held that the jury might take into account the defendant’s drunkenness when considering whether the defendant acted under a bona fide apprehension that his person or property was about to be attacked.94 Five years later in Pearson’s case,95 a defendant was charged with murder for beating his wife to death with a rakeshank. Mr Justice Park noted that while drunkenness was no excuse for a criminal offence, it:96 may be taken into consideration to explain the probability of a party’s intention in the case of violence committed on sudden provocation. Similar views were expressed by Baron Parke two years later in R. v. Thomas97 where it was commented that the passion of an intoxicated person was more easily excitable than that of a sober person.98 In contrast to these cases, was the decision of Mr Justice Park in 1835 in R. v.Carroll,99 where he held that drunkenness could not be taken into consideration where premeditation was in issue.
In reaching this conclusion His Honour overruled the earlier decision of R. v. Grindley,100 which he criticised as being too wide in its application with the potential for risk to human safety if it were to be ‘considered as law’. Comments on the relationship between drunkenness and intent were first made in 1836 in R. v. Meakin.101 In that case, the defendant was accused of stabbing the deceased with a fork with intent to murder. Baron Alderson directed the jury that when examining intent, drunkenness may be taken into consideration when the instrument used is not a dangerous type of instrument:102 but where a dangerous instrument is used, which, if used, must produce grievous bodily harm, drunkenness can have no effect on the consideration of the malicious intent of the party.
On the facts before him, Baron Alderson directed the jury that the use of the fork by the defendant constituted the use of a dangerous weapon and that this indicated a malicious intent that could not be altered by evidence of drunkenness. The jury returned a guilty verdict. In 1838, further consideration was given to drunkenness and intention in R. v.Cruse,103 where the defendant was charged with assault with intent to commit murder. Mr Justice Patterson directed the jury that drunkenness was an important factor to be considered where intent was in issue and that although the defendant may have committed an act of great violence, the defendant may have been unable to form any intent due to drunkenness.104 Mr Justice Patterson’s remarks were carefully examined by Mr Justice Coleridge (as he then was) in R. v. Monkhouse,105 which involved a charge of wounding with intent to murder.
While agreeing with the substance of the earlier direction, His Honour questioned the propriety of the language used in the earlier case.106 His Honour directed the jury that while drunkenness did not constitute a defence to a criminal offence, the jury must consider whether the defendant was so intoxicated that he was unable to form the intent charged.107 If a defendant was rendered more irritable or excitable by his or her intoxicated condition, then that condition was not a relevant factor for the jury to take into account. However, Mr Justice Coleridge said that a defendant’s intoxicated condition should be considered by the jury if it:108 was such as to prevent his restraining himself from committing the act in question, or to take away from him the power of forming any specific intention. This direction remains important as the first to suggest that evidence of intoxication is relevant to thorough examination negative specific intent.
The 1880’s also witnessed developments in the law concerning the relationship between drunkenness and mental disease. In 1881, in R. v. Davis,115 a case which involved a charge of wounding with intent to murder, the evidence showed that the defendant was suffering from delirium tremens caused by alcohol. Mr Justice Stephen held that drunkenness amounting to temporary insanity could constitute a defence to crime. His Honour said:116 if a man by drunkenness brings on a state of disease which causes such a degree of madness, even for a time, which would have relieved him from responsibility if it had been caused in any other way, then he would not be criminally responsible.
This view stood in contrast to the earlier cases in the 1820’s of R. v. Burrows117 and R. v. Rennie,118 where Mr Justice Holroyd refused to recognise drunkenness as an excuse for a criminal offence unless that drunkenness constituted a continuing or permanent condition of insanity. The proposition enunciated in R. v. Davis119 was confirmed four years later by Mr Justice Day in R. v. Baines.120 In DPP v. Beard121 the Lord Chancellor, Lord Birkenhead, expressly approved this proposition,122 making clear that drunkenness causing only temporary insanity did constitute a defence to a criminal charge.
Twentieth Century Authorities
The first important common law statement in the twentieth century concerning drunkenness and criminal responsibility occurred in R. v. Meade.123 In that case, the defendant struck the victim with a broomstick and punched her with his fist causing the rupture of her intestine and her death. The defendant was found guilty of murder and appealed on the basis that the trial judge had led the jury to believe that a verdict of manslaughter required evidence that the defendant was insane or in a condition similar to insanity. The English Court of Appeal upheld the verdict declaring that a person is taken to intend the natural consequences of his or her act, but that such a presumption can be rebutted by evidence of drunkenness which shows that the defendant’s mind was so affected by drink ‘that he was incapable of knowing that what he was doing was dangerous, i.e. likely to inflict injury’.124 This was a much broader principle than that which had previously been laid down by Mr Justice Stephen in R. v. Doherty,125 in that its application was universal and not restricted to offences where intent was an essential element of the crime charged.
R. v. Meade126 remained the leading authority until 1920 when the House of Lords delivered its decision in D.P.P. v. Beard.127 In that case, the defendant raped a young girl of 13 and in placing his hand across her mouth to prevent her screaming suffocated her. Beard’s defence was that he was drunk at the time and he had not intended to kill the girl. The trial judge directed the jury that the defence of drunkenness could only be relied upon if it produced in the defendant a state of insanity. The Court of Appeal quashed Beard’s conviction and substituted a verdict of manslaughter. The House of Lords reinstated the murder conviction making important pronouncements concerning intoxication and criminal responsibility.128 The decision generated debate and uncertainty arising from two passages that proved difficult to reconcile.
Commentators have criticised the approach, some arguing that evidence of intoxication should be able to negative mens rea for any offence.129 In the first of the two controversial passages, the Lord Chancellor, Lord Birkenhead, said:130 where a specific intent is an essential element in the offence, evidence of a state of drunkenness rendering the accused incapable of forming such an intent should be taken into consideration in order to determine whether he had in fact formed the intent necessary to constitute the particular crime. One of the major controversies was whether evidence of self-induced intoxication could be raised by a defendant in relation to any offence to show that he or she did not have the appropriate guilty mind for the offence charged, or whether evidence of self-induced intoxication was only relevant to offences with a specific intent; that is, offences with an intention to achieve a particular result.
It is arguable that, in the first passage, Lord Birkenhead may not have meant to distinguish between offences of specific and basic intent, but he may simply have been referring to offences where intent is an important element of an offence. Controversy aside, the principle that was subsequently applied by most judges and practitioners in England was that which distinguished between offences of specific and basic intent, with the consequence that where a defendant was charged with an offence of specific intent, evidence of self-induced intoxication was able to be relied upon by a defendant to show that he or she did not have the necessary intent.
Accordingly, ‘specific’ and ‘basic’ intent have been given distinct technical meanings, with the result that evidence of self-induced intoxication is treated differently according to the nature of the offence charged. Another interesting point is that while Lord Birkenhead spoke of the effect of intoxication on the capacity of the defendant to form the relevant mental state, subsequent decisions altered the rule so that the crucial question was whether the prosecution could prove that the defendant formed the requisite mental element in fact.
The leading modern authority in English law is the decision by the House of Lords in DPP v. Majewski.133 The defendant was involved in a brawl at a public house in which he assaulted patrons and police. He was charged with assault occasioning actual bodily harm and assaulting a constable in the execution of his duty. He gave evidence that he had consumed a large quantity of alcohol and drugs and that at the time of the alleged offences he did not know what he was doing and had no intention of striking anyone. The trial judge directed the jury that self-induced intoxication was irrelevant and could afford him no defence. The defendant was convicted and the Court of Appeal dismissed his appeal. However, the Court of Appeal certified the following question as a point of law of public importance for the consideration of the House of Lords, namely:134 Whether a defendant may properly be convicted of assault notwithstanding that by reason of his self-induced intoxication, he did not intend to do the act alleged to constitute the assault.
The House of Lords was unanimous in concluding that even though the defendant was intoxicated he could be convicted of the assault. In reaching that conclusion their Lordships were prepared to sacrifice legal consistency and logic on grounds of public policy. Majewski’s case divides offences into those of specific and basic intent. The commonly accepted view of the principle laid down in the case is that in relation to crimes of basic intent, evidence of self-induced intoxication cannot be considered when determining whether a defendant formed the intention to commit the offence or whether a defendant acted voluntarily.135 In other words, a defendant may face conviction for an offence of basic intent even though the defendant had no intention to commit the offence or acted involuntarily.
Where the intoxication produced a state of insanity, evidence of self-induced intoxication may be considered to determine whether a defendant formed the mental element for offences of basic intent. The principles enunciated in Beard’s case136 were thus confirmed and the division of criminal offences into ‘basic’ and ‘specific’ intent became entrenched in English common law. The decision in Majewski’s case was based on principles of public policy, notably: (1) that the law should provide protection against unprovoked violent conduct of intoxicated offenders; and (2) that it is morally just to hold intoxicated offenders responsible for criminal conduct, given that they freely chose to become intoxicated. In relation to the need to protect the community, Lord Salmon, for example, said:137 The law is primarily concerned with human affairs.
I believe that the main object of our legal system is to preserve individual liberty. One important aspect of individual liberty is protection against physical violence. If there were to be no penal sanction for any injury unlawfully inflicted under the complete mastery of drink or drugs, voluntarily taken, the social consequence could be appalling. As to the justice involved in convicting an intoxicated offender, Lord Chancellor, Elwyn-Jones accurately summed-up the views of all their Lordships:138 If a man of his own volition takes a substance which causes him to cast off the restraints of reason and conscience, no wrong is done to him by holding him answerable criminally for any injury he may do while in that condition. His course of conduct in reducing himself by drugs and drink to that condition in my view supplies the evidence of mens rea, of guilty mind certainly sufficient for crimes of basic intent.
It is a reckless course of conduct and recklessness is enough to constitute the necessary mens rea in assault cases. The decision in Majewski’s case and its division of offences into those of specific and basic intent has been strongly criticised. The major difficulty arising from this decision (as with Beard’s case) is how to consistently differentiate between offences of specific and basic intent. This and other criticisms are discussed further below.139 A further restriction was placed on the use of evidence of intoxication in 1982 in the case of R. v. Caldwell.140 Caldwell’s case concerned the former employee of a hotel proprietor who became very intoxicated, broke a window and started a fire in a ground floor room. The fire was stopped before any substantial damage occurred.
The defendant said that while he intended to cause damage he did not consider that people’s lives might be in jeopardy. The House of Lords held that evidence of self-induced intoxication could not be considered where recklessness constitutes the fault element of an offence.141 Recklessness was defined as conduct which created a risk that would have been obvious to the ordinary prudent person, but the defendant either gave no thought to the possibility of the risk or, having recognised the risk, decided to take it anyway.142 The crucial point here is that as a consequence of Caldwell’s case, evidence of intoxication could no longer be considered where recklessness was at issue.
Subject: Common law,
University/College: University of Chicago
Type of paper: Thesis/Dissertation Chapter
Date: 9 November 2016
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