Revision:Intoxication

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Here are some guidelines on how to write a first class answer on Intoxication for your Criminal Law degree-level examination.

Typical exam essay question: “The law of intoxication is a prime example of the unprincipled nature of the modern criminal law” Discuss.

What is the law of intoxication? (Lipman / Majewski)

• Specific intent (wounding or causing GBH with intent, theft, robbery): intoxication can preclude a finding of mens rea

• Basic intent (common assault, manslaughter): intoxication must be ignored or could be used as evidence of mens rea

• Pragmatic distinction (Simester and Sullivan)

What are the “principled” concerns about this approach?

• Orthodox subjectivist approach: If no subjective mens rea there should be no liability. R v G (2003) illustrates the prevalence of the subjectivist approach in contemporary criminal law. It knocked out Caldwell objective recklessness which was the ultimate underlying of the subjective principle which entails that one can be guilty of an offense if they ought to have had foreseight.

• Majewski ignores this subjectivist approach for basic intent crimes (see e.g. Heard (2007). For specific intent crimes the orthodox approach will be applicable. However for basic intent crimes, which are normally high in volume, the moral questionability of getting drunk is appreciated and a pragmatic approach is adopted. Intoxication is ignored and mens rea is constructed. It is asked what the mens rea would be like if the person was sober. What was the motivation of the courts underpinning the law?

• Desire to ensure deliberate drunkenness can’t exculpate.

• Desire for effective crime control over due process requirements.

Is it really necessary to approach intoxication in this way?

• Majewski has been rejected in jurisdictions like Australia (O’Connor) and Canada and orthodox subjectivist approach as taken its place.

• Orchard argued that it hasn’t undermined the efficacy of the law.

• However, Law Commission has recently (1998) proposed to retain it.

Note the “principled” but unjust impact of rules when involuntarily intoxicated (Kingston)

If you have any questions on Intoxication, feel free to contact Tufts