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Intoxication Defence - Revision guide
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A guide for how intoxication impacts different areas of criminal law as a defence, including los of control, diminished responsibility, alcohol dependency syndrome etc.
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IntoxicationIntoxication
D may avoid criminal liability if intoxicated with drugs or alcohol (more likely
succeed with intoxication defence if involuntarily intoxicated (drugged without
consent) - the court will ask did the defendant form the mens rea even though
intoxicated? Kingston (if still formed MR in intoxicated state, no defence to plead, he
would not have committed the offence sober).
With voluntary intoxication the rules are more complex - less serious crimes of basic
intent (where recklessness is a form of mens rea available), the defendant will be
deemed reckless if they would have foreseen the risk of harm if sober, Coley,
McGhee and Harris.
Murder, voluntary manslaughter and intoxication
Intoxication
Intoxication (can mean with drugs or alcohol.)
o as a way to negate the mens rea of murder; or
o as an influencing factor on the special defences of loss of control and
diminished responsibility.
If D is intoxicated loss of control and/ or diminished responsibility can still be
potentially argued as partial defences to murder, reducing the conviction to voluntary
manslaughter if successful.
Negating the mens rea
A defendant can use evidence of their intoxication to show that they did not form the
necessary mens rea for murder- that the defendant did not form the mens rea of
intention to kill or cause grievous bodily harm to the victim.
the prosecution need to prove, beyond reasonable doubt, that the defendant has
committed the actus reus and the mens rea of murder. If, due to intoxication, the
defendant did not form the mens rea of murder, then the defendant will be entitled to
an acquittal.
Intoxication and loss of control
R v Asmelash [2013]
'It does not mean that the defendant who has been drinking is deprived of any possible
loss of control defence: it simply means, that the loss of control defence must be
approached without reference to the defendant's voluntary intoxication. If a sober
individual in the defendant's circumstances, with normal levels of tolerance and self-
restraint might have behaved in the same way as the defendant confronted by the
relevant qualifying trigger, he would not be deprived of the loss of control defence
just because he was not sober. And different considerations would arise if, a
defendant with a severe problem with alcohol or drugs was mercilessly taunted about
the condition, to the extent that it constituted a qualifying trigger, the alcohol or drug
problem would then form part of the circumstances for consideration.'
R v Morhall [1996]
, - case under the old law on provocation. D was addicted to glue and had been taunted
about his glue-sniffing habit (fact that he was addicted to glue was relevant in
assessing the gravity of the provocation, but the jury had to consider whether a
reasonable man, who was not high on glue, would have done what he did) Defendant
is not precluded from using the defence just because he is drunk;
- His intoxication will be ignored in accordance with the CJA 2009, s 54(3) (as a
circumstance whose only relevance to D’s conduct is that it bears on D’s general
capacity for tolerance or self-restraint), if it has no connection to the things said or
done which make up the qualifying trigger; and
- If there is a connection between the things said or done which make up the qualifying
trigger eg when the defendant is taunted about his intoxication, then the jury can take
that intoxication into account in assessing the gravity of the qualifying trigger.
Intoxication and diminished responsibility
How courts have dealt with intoxication and diminished responsibility, despite the
modification of the HA 1957, s 2. The courts have taken two approaches, depending
on whether the intoxication is:
o independent of the abnormality- the defendant has an abnormality of mental
functioning and is voluntarily intoxicated; or
o as a result of alcohol dependency syndrome (‘ADS’).
Intoxication independent of the abnormality
A defendant might, at the time of the killing suffer from both an abnormality of
mental functioning and from the effect of alcohol taken before the killing.
R v Dietschmann [2003]: would be an impossible task for the jury simply to ignore
the effect of the alcohol and decide whether the defendant, sober, would still have
killed as a result of the abnormality. Instead, the jury must first consider the effect of
the matters other than the alcohol and determine whether they amounted to such
abnormality of mental functioning as might have substantially impaired the
defendant's ability to do one of the things in the HA 1957, s 2(1A).
'If the defendant was intoxicated at the time of the killing, the jury should then ask
themselves: has the defendant satisfied you that, despite the drink,
1. he was suffering from mental abnormality; and
2. his mental abnormality substantially impaired his mental responsibility for his fatal
acts?'
jury may still find the defence operates, even if the alcohol may have played a part in
the defendant's inability to do one of the factors in the HA 1957, s 2(1A).
Voluntary intoxication and diminished responsibility
R v Dowds [2011]
The defendant, a binge drinker, stabbed his partner after a night of heavy drinking and
tried to run the defence of diminished responsibility on the basis that he was suffering
from a recognised medical condition, namely 'Acute Voluntary Intoxication'.
o Dowds was not arguing that he was an alcoholic and there was no evidence to
suggest it. This could not give rise to the defence and did not put it to the jury.
Dowds argued that the changes made to the defence by the Coroners and
Justice Act 2009, s 52 meant that it was possible to raise the defence of
diminished responsibility based on voluntary intoxication because such
intoxication is recognised as a medical condition
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