Cases - defences - intoxication

AG for NI v [Intoxication as a defence - Dutch Courage rule - no defence]

Gallagher [1961]
HL D killed his wife. He drank a bottle of whisky to give him the "Dutch
courage" to do so.

Held: As long as D had the mens rea of murder at the time of

drinking the whisky, and did not positively discard it, he could
properly be convicted. Lord Denning: defence not available to either
'specific' or 'basic' intent, if drink or drugs taken to fortify courage.

Guilty
Aitken, Bennett, ^[Assault – Sec 20 an offence of basic intent - consent by
Barson, R v (1992) conduct therefore intoxication not a defence]
CA D's RAF officers at a party at the completion of their flying training.
They drank a lot. There was some horseplay that was treated it as a
joke.

D's set fire to V's fire resistant suit. In his drunken state he could
only resist weakly. Flames flared up rapidly and although the
appellants took immediate action to put out the fire but G was
severely burned.

Held: Section 20 not an offence of specific intent.

Therefore drunkenness is no defence to the forming of the intent
necessary.

D’s would have acted maliciously if they had foreseen that their
actions would result in injury to V or would have foreseen injury but
for drunkenness.

A victim can give effective consent to the risk of accidental injury in

the course of rough undisciplined play.

Moreover, if D honestly but mistakenly believed that V had

consented (or in this case, would have so believed had they not
been intoxicated), that too would be a defence.

Not Guilty of GBH

Allen, R v (1988) [Intoxication – voluntary starting drinking – rules of
CA voluntary intoxication apply throughout]
D drank in a pub, and then some home made wine, not knowing its
strength. He then committed an appalling indecent assault on his
neighbour.

Held: If the defendant knows that he is drinking alcohol but is

mistaken as to its strength, he has to rely on the rules of voluntary
intoxication apply.

Guilty
Bailey, R v (1983) [Automatism - self-induced - available for specific or basic
CA intent in some circumstances]
D seriously injured a rival in love with an iron bar. D, a diabetic,
visited his ex-girlfriend and her new partner. He took insulin and
drank some sugared water but he had nothing to eat.

He assaulted the partner of his ex-girlfriend. He said he hit him to

teach him a lesson for associating with the girl. D claimed he acted
in a state of automatism caused by hypoglycaemia. He did not
complicate the issue with alcohol or drugs.

Held: Automatism, even if self-induced could provide a defence to a

crime of basic intent crime (unless caused by intoxication). What
must be considered is whether D, in view of his knowledge of the
likely results of his actions, was sufficiently reckless. It was not
necessarily reckless to fail to take food after a dose of insulin.

Guilty although non-insane (self-induced) automatism, no injustice

at trial.
Beard, DPP v [Intoxication - D cannot form specific intent]
(1920) HL D whilst drunk raped 13 yr old Ivy Wood, he placed his hand upon
her mouth to stop her from screaming, pressing his thumb on her
throat. She died of suffocation.

Lord Birkenhead accidentally used term specific/basic intent.

Held : Drunkenness was no defence unless it could be established

that the accused at the time of committing rape was so drunk that
he was incapable of forming the intent to commit it.

The death resulted from a succession of acts, the rape and the act
of violence causing suffocation, which could not be regarded
independently of each other. The trial Judge was mistaken in
applying the test of insanity to a case of drunkenness not amounting
to insanity.

Guilty murder
Blakely & Sutton v [Intoxication as a defence – offence of strict liability]
DPP [1991] QBD DD secretly laced a man drinks with spirits at a party. They wanted
to make him so drunk that he would be unable to drive home and
would have to spend the night with them.

He left and started to drive home.

Held: He was subsequently convicted of driving with excess alcohol

but given an absolute discharge (it is an offence of strict liability).
DD were acquitted of procuring this offence, because of their lack of
any foresight that the offence would in fact be committed.
Caldwell, R v [Objective recklessness]
(1982) HL In respect of Criminal Damage this case has been overruled by R v
G and another [2002] HL
D caused criminal damage with intent to endanger life or being
reckless as to whether life was endangered. . D worked at a hotel.
After a quarrel with his employer, D got drunk and set fire to the
hotel.

D pleaded not guilty on the ground that, being intoxicated, he was

unable to appreciate the risk.

Held :
Lord Diplock
In order to establish that D was reckless in a charge of criminal
damage, the jury must consider a two-part test:
1. Did D commit an act which created an obvious risk that
property would be damaged? and
2. When D committed the act did he either give no thought to
the possibility of there being a risk or, having recognised the
risk, did he go on to take it?
His self-induced intoxication would have been relevant, but since it
was that he had been reckless as to the danger, evidence of self-
induced intoxication was irrelevant to his guilt.

Guilty
Fotheringham, R v [Intoxication – voluntary starting drinking – rules of
(1989) CA voluntary intoxication apply throughout]
D raped the babysitter after arriving home with his wife. Expecting
to be returning late told the baby-sitter to sleep in their bed. When
the couple returned home the husband, got into the bed and raped
the baby-sitter. His defence was that he was drunk and thought he
was in bed with his wife.

Held: Intoxication that is self-induced is no defence to rape.

Guilty
Hardie, R v (1984) [Intoxication – voluntary taking drugs (except non-
CA dangerous drugs – rules of voluntary intoxication apply
throughout]
D started a fire in a friend's flat after taking valium (not prescribed
for him).

Held: Caldwell distinguished because he did not have the mens rea,
and considered that while intoxication cannot usually be pleaded as
a defence to offences of recklessness, the rule will not generally
apply to drugs …
... if the effect of a drug is merely soporific or sedative the taking of
it, even in some excessive quantity, cannot in the ordinary way
raise a conclusive presumption against the admission of proof of
intoxication for the purpose of disproving mens rea in ordinary
crimes, such as would be the case with alcoholic intoxication or
incapacity or automatism resulting from the self-administration of
dangerous drugs.

Not guilty
Hatton, R v [2005] [Intoxication – rule in O’Grady is correct – intoxicated
(CA) mistake not relevant to self-defence]
D beat the deceased to death with a sledgehammer after drinking
over 20 pints of beer His recollection of events was unclear but he
believed that he was under attack. The issue was the
reasonableness of D’s reaction as he had believed the facts to be,
even if that belief was mistaken and the mistake was caused by his
intoxication.

Held: In self-defence, a mistake induced by drunkenness cannot be

relied on.

The decision in O’Grady was not obiter simply because it was a case
of manslaughter, and that, accordingly, anything said about the law
of murder had to have been unnecessary to the decision.

The issue considered by the court in O’Grady had been whether a

defendant who raised the issue of self-defence was entitled to be
judged on the basis of what he mistakenly believed to be the
situation when that mistaken belief was brought about by self-
induced intoxication by alcohol or drugs. To that issue, the court had
ruled that he was not.

Guilty
Hendy, R v [2006] ^[Intoxication - effect of intoxication can be disregarded in
CA diminished responsibility]
D stabbed and killed a complete stranger. D raised diminished
responsibility, there was evidence that alcohol, had played a part in
the killing.

Held: D did not have to show that if he had been sober, he would
still have killed the victim to benefit from diminished responsibility.

Section 2(1) of the Homicide Act 1957 meant that, if - ignoring the
effect of the alcohol - D's abnormality of mind substantially impaired
his mental responsibility for his acts in doing the killing, the jury
should find him not guilty of murder but guilty of manslaughter.

R v Gittens [1984] QB is correct. Dietschmann was not ’new law’ but

simply explained what the law had always been since the 1957 Act
was enacted and since Gittens.

Guilty of manslaughter
Also here
Jaggard v [Intoxicated mistakes – can be same as sober mistake]
Dickinson [1980] D broke into a house under the drunken mistake that it belonged to
QBD a friend.

Held: The Act provided an express defence for anyone who believed
the person whom she believed to be the owner would have
consented to the damage. Although D's mistake was not a
reasonable one, Parliament had provided a defence based on honest
belief, and the usual common law rules did not apply.

Not guilty
Kingston, R v ^[Intoxication - a drugged intent is still an intent]
(1995) HL D indecently assaulted a 15-year-old boy who had been drugged
unconscious by P who then invited D to sexually abuse the boy. D
claimed that he had no recollection of the assault, as his drink had
also "been laced" with drugs by the P, who photographed the
indecent act.

Held: Involuntary intoxication is not a defence to a defendant who

is proved to have the necessary criminal intent when he committed
the offence even if under the influence of drugs administered
secretly to the accused by a third party.

There was no defence of exculpatory excuse known to the criminal

law since the absence of moral fault on the part of the defendant
was not sufficient in itself to negative the necessary mental element
of the offence.

The trial judge had correctly directed the jury that if they were sure
that despite the effect of any drugs the defendant still intended to
commit an indecent assault the case against him was proved.

Lord Mustill said he was not sure if a line could definitively be drawn
between offences of "specific" and "basic" intent.

Guilty
Lipman, R v [General Defences - Automatism ]
(1970) CA D and his girlfriend V each took a quantity of LSD (a hallucinatory
drug). During his "trip", D imagined he was being attacked by
snakes at the centre of the earth and had to defend himself; in
doing so, he actually killed V by cramming eight inches of sheet
down her throat.

Held: He was acquitted of murder because the jury were not sure
that he had the necessary intention, being intoxicated, but convicted
of manslaughter.
Majewski, DPP v [Intoxication as a defence not available to crime of basic
(1977) HL intent]
D assaulted 3 people in a fight in pub then one PC who attend the
scene then 2 more officers at the police station.

His defence was that he had been drinking and taken drugs and had
no intention to commit the acts which he did.

Whole case here In determining whether a defendant intended certain consequences

the court must have regard to all the evidence (Criminal Justice Act
1967 s.8) and must not infer such an intention merely because the
consequences were likely.

Held: Intoxication is no defence to crime of basic intent. His

conduct in reducing himself to that condition supplies the evidence
of mens rea sufficient for crimes of basic intent.

Lord Simon;
“One of the prime purposes of the criminal law…is the protection ...
of persons who are pursuing their lawful lives … To [apply Sec 8]
would leave the citizen legally unprotected from unprovoked
violence where such violence was the consequence of drink or drugs
having obliterated the capacity of the perpetrator to know what he
was doing or what were its consequences.”
Guilty Also here
O'Connor, R v [Intoxication – mistake as to fact of attack – mistake as to
[1991] CA amount of force]
In a drunken state, D killed another man in a fight in a pub.

Held : The jury should consider D's specific intent or lack of intent
in the light of his intoxication, and had failed to do so.

Where a defendant because of self-induced intoxication formed a

mistaken belief that he was using force to defend himself a plea of
self-defence failed - R v O'Crady (1987);

In relation to intent, & foresight a Moloney direction was only

necessary in rare cases;

Generally the defendant's intention and desire coincided - R v

Nedrick (1986);

On the question of intent, it was not the capacity to form any

intention that was at issue but whether the defendant had the
specific intent (to do grievous bodily harm);

All the circumstances, including the consumption of drink, should be

considered by the jury -R v Garlick (1980).

Self-induced drunkenness could have had the effect of preventing

the appellant from forming the specific intent.
 Guilty manslaughter not murder
O'Grady, R v [Intoxicated mistakes – self defence not available if drunken
[1987] CA mistake as to attack]
D and his friend M killed M supposedly in self-defence during a fight.
They had spent all day drinking, and consumed about eight flagons
of cider between them.

D overestimated the threat to himself, and had used excessive force

in his own defence.
Whole case here
Convicted by the jury of manslaughter

Held: There were two public interests to be balanced: on the one

hand D should be able to do what he honestly believed necessary to
protect himself, but on the other the innocent victim should be
protected from injury or death by another's drunken mistake.

Reason recoiled from the conclusion that D should be able to walk

free after a drunken killing, and logic would extend such a defence
(if allowed) even to Lipman. This would clearly be unjust, so it must
remain the case that a defendant cannot rely on self-defence where
it results from a mistake caused by his own intoxication.

Guilty manslaughter
Also here
Quick, R v (1973) [Automatism - an external factor]
CA D, a nurse, assaulted a patient. He was a diabetic, had taken insulin
and not eaten sufficient food. He drank whisky and rum he could not
remember the assault. He pleaded automatism.

Held: D was suffering from automatism, which is a mental

abnormality caused by an external factor. He was not suffering from
insanity caused by hypoglycaemia (low sugar in the blood) by taking
insulin prescribed by his doctor. [Distinguished from hyperglycaemia
high blood sugar occurring naturally, which would be insanity]

Lawton LJ:
"a self-induced incapacity will not excuse ... nor will one which could
have been reasonably foreseen as a result of either doing or
omitting to do something, for example, taking alcohol against
medical advice after using certain prescribed drugs or failing to have
regular meals while taking insulin."
Not guilty
Richardson & [Assault – mens rea – did D, or would D, if sober, foresee the
Irwin [1999] CA consequences]
DD two students lifted another over a balcony and dropped him
about 12 feet to the ground, causing him serious injuries. During
horseplay following an evening's drinking

Held: Clarke LJ said that the question was not what another person
would have foreseen but what DD themselves would have foreseen
had they been sober.

Not Guilty
Stubbs, R v (1989) [Assault – no mens rea because of drunkenness]
CA D, in a drunken state stabbed V causing GBH, during a fight outside
a pub.
He was charged under s.18, but the prosecution and the Recorder
accepted a plea to s.20.

Held: Although the absence of mens rea due to drunkenness would

be a defence to a crime of specific intent, that drunkenness would
have to be very extreme to justify reducing a s.18 offence to s.20.

Not Guilty
Tandy, R v (1989) [Diminished responsibility - abnormality of the mind
CA impairing mental responsibility - effects of alcoholism - role
of jury]
D, an alcoholic, had drunk nearly a bottle of vodka when she
strangled her 11 yr old daughter. (She normally drank Vermouth or
Barley wine),

Held: For a craving for drink to produce an "abnormality of mind"

induced by the disease of alcoholism, there had to be grossly
impaired judgement and emotional responses or the craving had to
be such as to render the first drink of alcohol of the day involuntary.

But, if the accused had simply not resisted an impulse to drink she
could not rely on the defence of diminished responsibility, and if D
took the first drink of the day voluntarily, the whole of the drinking
on that day was voluntary, and diminished responsibility was not
available to her.

Watkins LJ:
"If the alcoholism has reached the level at which her brain had been
injured by the repeated insult from intoxicants so that there was
gross impairment of her judgment and emotional responses, then
the defence of diminished responsibility was available to her ... if
her drinking was involuntary, then her abnormality of the mind at
the time of the act of strangulation was induced by her condition of
alcoholism."
Guilty of murder