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‘The current law of intoxication is not fit for purpose in modern times and needs to be reformed urgently’. Discuss the extent to which this statement is accurate. $11.76
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‘The current law of intoxication is not fit for purpose in modern times and needs to be reformed urgently’. Discuss the extent to which this statement is accurate.
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Course
A2 Unit G153 - Criminal Law
Institution
OCR
‘The current law of intoxication is not fit for purpose in modern times and needs to be reformed urgently’. Discuss the extent to which this statement is accurate.
The defence of intoxication is not fit for purpose and needs to be reformed
urgently. Discuss the extent to which this statement is accurate [20]
Intoxication is a defence which can negate the mens rea of a criminal offence. It is a
common law offence and can occur by drinking alcohol, taking drugs or other substances
such as sniffing glue. The defence of intoxication has changed to each specific case. This
ensures that the defence is updated and useful for each case and also fits for purpose.
The legal principle perspective argues that a defence should be given for those who
commit crimes when their thinking has been impaired due to alcohol drugs or other
intoxicants. However, this defence is very limited because of the term “public policy”. It
is limited because it can be viewed that D is blameworthy for getting themselves into
that state in the first place. To ascertain whether a defendant can use this mental
capacity of defence, it must be decided if the offence needed basic (reckless is sufficient
for mens rea) or specific (intention is required). Also, if the intoxication was voluntary
(Hardie) or involuntary (Kingston). For a mistake based on intoxication, it depends on
what the mistake was to decide if it negates the mens rea (Lipman). Due to the Criminal
Justice Act 1988, the defence is not available for a mistake of self-defence due to
intoxication. Crimes of specific and basic intent in voluntary intoxication are very
complicated and problematic areas of law. Many people have criticised the fact that
there has been no immediate reform being taken place.
Where the defendant makes the decision themselves to be in a situation, that is called
Voluntary Intoxication. According to the Sheehan and Moore case, a drunken intent is still
an intent. Where D uses intoxication successfully, having committed a crime of specific
intent crime, they are instead found guilty of an alternative, comparable basic intent
crime. This is known as a fall-back offence. For example, where charged with murder
(specific intent), D would be found guilty of manslaughter (basic intent). Due to his usage
of LSD, L in Lipman didnt have the necessary mens rea for murder but was nevertheless
responsible for manslaughter. Even when the defendant is not acting soberly, they are
still guilty of the offence, hence the defence may be appropriate and fit for purpose. In
the case of Heard, Hughes LJ stated obiter that an offence of specific intent is one of
ulterior intent, requiring proof of purpose or consequence, including offences where the
purpose goes beyond the actus reus of the offence. Many people argue that this is not
useful because only some crimes need specific intent involved. Theft is problematic due
to the fact that there is no alternative, fall back offence. Meaning where D commits theft
whilst intoxicated the defence would operate as a complete defence. This creates a
public policy issue and also proves how the law is contradictory, and unclear and needs
to be changed.
Another problem with the defence of intoxication is the problem with coincidence in
voluntary intoxication. Voluntary intoxication refers to the defendant choosing to become
intoxicated (choosing to consume drinks or drugs). In Majewski, it focuses on the end
result and so contradicts the rule of actus reus and mens rea coinciding. Where usually
actus reus and mens rea should happen at the same time, with the defence of voluntary
intoxication there can be a large gap between the defendant drinking and the offence.
This can be argued as an unjust way of deciding liability for the defendant. Another
example in the Majewski decision is that it contravenes normal rule on recklessness that
the defendant will see a risk and take it anyway; they wouldnt have been able to see that
risk if intoxicated. There are also more criticisms of the Majewski decision. It results in
there being a ‘general risk of doing something stupid’, whereby someone is already
fulfilling the actus reus before even doing. It suggests someone is behaving recklessly
just by becoming intoxicated and that choice alone is satisfactory even when drinking at
leisure. It seems as if the Law Commission’s proposals tried to treat a voluntarily
intoxicated defendant subjectively, and thus more fairly, but could only do so in a very
limited way because of the overriding need to protect society at large.
It is incredibly difficult to succeed with involuntary intoxication since it happens without
the defendant’s fault and is a complete defence. It might be challenging to demonstrate
that there was no awareness of the intoxication. Inconsistency may be shown in the
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