INCAPACITY
Intoxication
Statistics on the correlation between intoxication and violent incidents report in the Law Com No
314 Intoxication and Criminal Liability (2009)
Intoxication does not provide a defence
If D has the requisite mens rea for the offence, D is always liable (an intoxicated mens rea is still a
mens rea)
Sheehan and Moore [1975]- two Ds, in a drunken state, poured petrol over a man and set
light to him causing his death- attempted to argue that they were so drunk that they were
incapable of forming the requisite mens rea for murder
The mere fact that D’s mind was affected by drink does not impact his ability to form a mens
rea (‘drunken intent is still intent’)
Kingston [1994]
Where there is no mens rea (eg. D strangles his friend thinking he is a giant snake (no knowledge
that V is a ‘reasonable creature’) or where D blacks out and acts involuntarily), the prosecution
follows the intoxication rules
‘The criminal law does contain an intoxication doctrine, but it is a doctrine of inculpation, not
exculpation... it operates for the benefit of the prosecution, not the defence. Wherever the
doctrine applies, its function- its sole function- is to treat D as if he acted with mens rea
when, in fact, he did not’ (Simester)
Seeks to help the prosecution where D lacks the requisite mens rea
Intoxication rules
Follows the rationale in Majewski [1976]- ‘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’ (Lord Elwyn-Jones)
It is not wrong to find D guilty where he has, on his own decision, taken the decision to
intoxicate himself (time 1) and crimes have later been committed as a result without having
the mens rea at the time (time 2)
(1) Was the intoxication voluntary or involuntary?
Voluntary intoxication will satisfy the first step of Majewski as satisfying mens rea (no need
to discuss intoxication rules further)
Involuntary intoxication will not replace a lack of mens rea
Ross v HM Advocate [1991]- D’s can of lager is spiked and over the next 30 minutes, he
goes on a rampage of stabbing people (no mens rea at the time and so not guilty as
involuntary intoxication was taken to not be able to replace a lack of mens rea)
Kingston- D had paedophilic tendencies which were kept under control in everyday life but
was later involuntarily intoxicated (drugged) by a third party and as a result, sexually
, assaulted a young boy- found guilty as, at the time he committed the crime, he still had the
requisite mens rea (intoxicated intent is still intent)
Allen [1988]- not ruled to be involuntary intoxication where D drank wine, but did not realise
how strong it was (still had mens rea)
(2) Was the intoxicant dangerous or non-dangerous?
Non-dangerous drugs will not replace a lack of mens rea
Lipman [1970]- American D in a hotel room and took LSD with V, who was discovered dead
in the morning with 8 inches of bed sheet down her throat- D at the time thought he was
defending himself against a dangerous snake
Conviction for manslaughter due to the nature of LSD as a dangerous drug (and D’s
voluntary intoxication)
Hardie [1984]- D broken up with by his girlfriend, who takes several valiums in order to calm
himself down and later sets fire to part of their shared house- no culpable conduct in the
past due to the legitimate and non-dangerous nature of the drug
Dangerous drugs distinguish between where the offence has basic or specific intent
Bailey [1983]- D attacked V (man who broke down his relationship) on an argument of a
momentary lapse of consciousness arising from diabetes (failure to take food)
Case failed due to a lack of basis of the argument itself, but also ruled that failure to take
food may be a prior fault
(3) Was it a crime of specific or basic intent?
Where the crime requires specific intent (eg. murder, theft- requires proof of ulterior
motive), intoxication will not replace a lack of mens rea, whereas where the crime requires
basic intent (eg. rape- only require proof that D intended to commit the actus reus),
intoxication will replace a lack of mens rea
Does not matter much in practice in murder cases as the offence will likely be downgraded
to manslaughter
This distinction between specific and basic intent crimes lack logic, but has strong policy
arguments underlying it
Majewski ruled that the prosecution cannot use intoxication to find specific intent, although this can
be done in cases of basic intent
Intoxication
Statistics on the correlation between intoxication and violent incidents report in the Law Com No
314 Intoxication and Criminal Liability (2009)
Intoxication does not provide a defence
If D has the requisite mens rea for the offence, D is always liable (an intoxicated mens rea is still a
mens rea)
Sheehan and Moore [1975]- two Ds, in a drunken state, poured petrol over a man and set
light to him causing his death- attempted to argue that they were so drunk that they were
incapable of forming the requisite mens rea for murder
The mere fact that D’s mind was affected by drink does not impact his ability to form a mens
rea (‘drunken intent is still intent’)
Kingston [1994]
Where there is no mens rea (eg. D strangles his friend thinking he is a giant snake (no knowledge
that V is a ‘reasonable creature’) or where D blacks out and acts involuntarily), the prosecution
follows the intoxication rules
‘The criminal law does contain an intoxication doctrine, but it is a doctrine of inculpation, not
exculpation... it operates for the benefit of the prosecution, not the defence. Wherever the
doctrine applies, its function- its sole function- is to treat D as if he acted with mens rea
when, in fact, he did not’ (Simester)
Seeks to help the prosecution where D lacks the requisite mens rea
Intoxication rules
Follows the rationale in Majewski [1976]- ‘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’ (Lord Elwyn-Jones)
It is not wrong to find D guilty where he has, on his own decision, taken the decision to
intoxicate himself (time 1) and crimes have later been committed as a result without having
the mens rea at the time (time 2)
(1) Was the intoxication voluntary or involuntary?
Voluntary intoxication will satisfy the first step of Majewski as satisfying mens rea (no need
to discuss intoxication rules further)
Involuntary intoxication will not replace a lack of mens rea
Ross v HM Advocate [1991]- D’s can of lager is spiked and over the next 30 minutes, he
goes on a rampage of stabbing people (no mens rea at the time and so not guilty as
involuntary intoxication was taken to not be able to replace a lack of mens rea)
Kingston- D had paedophilic tendencies which were kept under control in everyday life but
was later involuntarily intoxicated (drugged) by a third party and as a result, sexually
, assaulted a young boy- found guilty as, at the time he committed the crime, he still had the
requisite mens rea (intoxicated intent is still intent)
Allen [1988]- not ruled to be involuntary intoxication where D drank wine, but did not realise
how strong it was (still had mens rea)
(2) Was the intoxicant dangerous or non-dangerous?
Non-dangerous drugs will not replace a lack of mens rea
Lipman [1970]- American D in a hotel room and took LSD with V, who was discovered dead
in the morning with 8 inches of bed sheet down her throat- D at the time thought he was
defending himself against a dangerous snake
Conviction for manslaughter due to the nature of LSD as a dangerous drug (and D’s
voluntary intoxication)
Hardie [1984]- D broken up with by his girlfriend, who takes several valiums in order to calm
himself down and later sets fire to part of their shared house- no culpable conduct in the
past due to the legitimate and non-dangerous nature of the drug
Dangerous drugs distinguish between where the offence has basic or specific intent
Bailey [1983]- D attacked V (man who broke down his relationship) on an argument of a
momentary lapse of consciousness arising from diabetes (failure to take food)
Case failed due to a lack of basis of the argument itself, but also ruled that failure to take
food may be a prior fault
(3) Was it a crime of specific or basic intent?
Where the crime requires specific intent (eg. murder, theft- requires proof of ulterior
motive), intoxication will not replace a lack of mens rea, whereas where the crime requires
basic intent (eg. rape- only require proof that D intended to commit the actus reus),
intoxication will replace a lack of mens rea
Does not matter much in practice in murder cases as the offence will likely be downgraded
to manslaughter
This distinction between specific and basic intent crimes lack logic, but has strong policy
arguments underlying it
Majewski ruled that the prosecution cannot use intoxication to find specific intent, although this can
be done in cases of basic intent
