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Manifest MadnessMental Incapacity in the Criminal Law$

Arlie Loughnan

Print publication date: 2012

Print ISBN-13: 9780199698592

Published to Oxford Scholarship Online: May 2012

DOI: 10.1093/acprof:oso/9780199698592.001.0001

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‘Since the days of Noah’:1 the Law of Intoxicated Offending

‘Since the days of Noah’:1 the Law of Intoxicated Offending

Chapter:
(p.172) 7 ‘Since the days of Noah’:1 the Law of Intoxicated Offending
Source:
Manifest Madness
Author(s):

Arlie Loughnan

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199698592.003.0007

Abstract and Keywords

This chapter examines the law on intoxicated offending, according to which incapacity resulting from intoxication by alcohol or drugs can form the basis for imputed criminal liability. The first of two main arguments made in this chapter is that while technical and complex rules appear to dominate, criminal law practices relating to intoxicated offending continue to depend on lay or non-expert knowledge of intoxication. This type of knowledge plays a significant part in criminal law practices concerning intoxicated offending into the current era — broadly, to block certain arguments about what is known and not known about intoxication. The second argument advanced in this chapter relates to the meanings given to intoxicated offending in criminal law. It suggests that, in the law on intoxicated offending, intoxication is simultaneously constructed as exculpatory abnormality and morally culpable conduct, two sets of meanings that are held in a fine balance in law and process.

Keywords:   criminal law, intoxicated offending, incapacity, intoxication, imputed criminal liability

(p.173) The rules about how intoxication affects criminal liability are rather notorious for their complexity and technicality. The rules determine when evidence of an individual's intoxication—by alcohol or any other drug—can be introduced in court to raise reasonable doubt as to whether he or she formed the mental element or mens rea of the offence. When such evidence can be introduced is determined by two factors: how the person became intoxicated and the kind of criminal offence they are alleged to have committed. In relation to the way in which the person became intoxicated, a distinction is drawn between self‐induced, voluntary, or advertent intoxication, and involuntary or inadvertent intoxication. As I discuss below, involuntary intoxication is admissible as evidence across the board of criminal offences. By contrast, the legal approach to voluntary intoxication—the type of intoxication at issue in the majority of cases—varies according to the type of offence with which an individual is charged, with evidence of it admissible only in relation to some offences.

The first of the two main arguments advanced in this chapter relates to lay or non‐expert knowledge of intoxication. While, as a result of a process of formalization, technical and complex rules appear to dominate criminal law practices relating to intoxicated offending, they continue to depend on lay or non‐expert knowledge of intoxication. Like lay knowledge of mental incapacity more broadly, and as I discuss in Chapters 3 and 6, the development of a lay knowledge of intoxication was the product of the development of an expert knowledge about intoxication. At the same time as a set of expert knowledges about alcohol, and its effects, appeared in the nineteenth century, a body of lay knowledge about intoxication was created. This knowledge now shares the field with expert knowledge, and, as elsewhere on the mental incapacity terrain, continues to play a role in criminal law doctrines and practices concerning mental incapacity. Regarding lay knowledge of intoxication in particular, in the current era, I suggest that this type of knowledge plays a three‐fold part in the criminal law on intoxicated offending—broadly, to block particular arguments about what is known and not known about intoxication.

The second of the two main arguments advanced in this chapter relates to the meanings given to intoxicated offending via legal doctrines and practices. Stretching (p.174) above its technical form, the law on intoxicated offending can be seen to be Janus‐faced. That is, the law encodes two different sets of meanings related to intoxication— intoxication as exculpatory abnormality and as morally culpable conduct—which are suspended in a fine balance in criminal law and process. The formalization of informal practices relating to intoxicated offending over the nineteenth century, and continuing into the twentieth century, marked the formation of a distinct legal entity of intoxication recognizable in the current era. As a result of this process of formalization, intoxication ceased to be an informal plea for exculpation, and came to be most accurately conceptualized as a ‘doctrine of imputation’, and, on my account of the mental incapacity terrain, a non‐exculpatory mental incapacity doctrine.2 But even after its formal structure and role in criminal law solidified, the law on intoxicated offending continues to countenance two different conceptualizations of intoxication, which accounts in part for the controversy surrounding this part of the criminal law.

The Emergence of an Informal Intoxication Plea

It is not possible to be precise about how, if at all, intoxication affected liability in the early modern era. The unrefined nature of liability structures, and the dominance of capital punishment, meant that there was no distinction between considerations of liability on the one hand and punishment on the other.3 This precluded the fine‐tuning of liability in the way that would have been required if intoxication was to operate as either a mitigating or an aggravating factor. There are, however, dicta to the effect that drunken offending was condemned by judges. In the first reported case on intoxication, Reniger v Feogossa, decided in 1551, the Court stated that a person who kills another shall not be ‘privileged’ if he [sic] was drunk when he acted, and actually ‘deserves double punishment, because he has doubly offended, viz. in being drunk to the evil example of others, and in committing the crime of homicide’.4 Similarly, in Beverley's Case, the Court stated that the defendant's ‘drunkenness does not extenuate his act or offence nor turn it to his avail, but it is a great offence in itself’.5 Given the unelaborated liability (p.175) structures that pertained at this time, it is most accurate to think of the dicta from these cases as in large part moral evaluative judgments.

Over the seventeenth and eighteenth centuries, there were significant changes in both the patterns of alcohol consumption, and the social meanings given to alcohol, each of which affected legal processes concerning intoxicated individuals. At the start of this period, consumption of ales and wine was restricted to the few who could afford it; by the end of the period, distilled spirits were cheap and widely available.6 Over the same time, drunkenness became a public sight and alcoholism came to be understood as a social problem.7 In terms of attitudes to intoxication, over the 1600s and 1700s, while older ideas about drunkenness, sin, and crime persisted, new ideas about intoxication as a threat to the social order appeared.8 At the beginning of this era, drunkenness was viewed as a failure of self‐control on the part of the individual. As Dana Rabin writes, seventeenth-century writers placed drunkenness ‘prominently on the slippery slope from minor sin to heinous crime’.9 However, partly as a result of the ‘phenomenon of mass and lethal intoxication’, drunkenness came to be understood not simply as weakness of the will, but as a ‘tyranny of habits’, which threatened to engulf the personality.10

The changing social profile of intoxication produced a change in legal practices related to intoxicated offending. Although intoxication did not constitute a formal defence to a criminal charge, as the writings of contemporary legal commentators such as Matthew Hale make clear, in practice, the rule disallowing intoxication as an excuse was disregarded.11 Those individuals raising intoxication in arguing for acquittal, mitigation, or pardon—legal categories which had indistinct conceptual (p.176) outlines—may be regarded as invoking what Rabin refers to as an ‘informal’ plea.12 Rabin develops a useful typology of intoxication cases in the eighteenth century, according to which drunkenness pleas fell into two camps: a ‘simple’ drunkenness plea, in which individuals argued in a general way for diminished responsibility from drink, and a plea linking intoxication and insanity.13

Of those individuals who raised a ‘simple’ drunkenness plea, Rabin argues that they were asserting ‘that the crime was out of their usual, sober character, that it would not have happened but for the influence of alcohol, and that they had no malicious intent when they committed the crime’.14 Based on my analysis of the Old Bailey Proceedings (OBPs), an example of this formulation of an informal intoxication plea is provided by the trial of George Stone for theft and burglary:

Court:

  • Did he appear drunk, mad or insane?
  • Cooley (witness):

  • He rather appeared in liquor.
  • Prisoner's defence:

  • I was very much in liquor and don't know what I did…. [I] had got a little more beer than ordinary…I have got a wife and five small children. I never did such a thing in all my life. Guilty of stealing. Transported for seven years.15
  • In this and similar cases of a ‘simple’ drunkenness plea, defendants were effectively blaming their offence on the intoxicating effects of liquor.16

    Those individuals who linked claims to drunkenness with insanity were attempting to associate the crimes they committed while under the effects of alcohol with ‘the uncontrollable behaviour expected of those deemed non compos mentis’.17 A number of the references to intoxication in the OBPs fit the profile of this type of informal plea. An example is provided by the trial of William Edwards for theft and burglary:

    Court:

  • A little drink would bring on the disorder?
  • Gosner (apothecary at Bethlem Hospital):

  • Very suddenly, I believe the first occasion of the disorder was from that.…
  • Court (to prisoner):

  • Have you anything further to say in [sic] your own behalf?
  • Prisoner:

  • Only that I am seized at intervals with lunacy, and I cannot account for it; I have had relapses these twelve years.
  • Not guilty.18
  • (p.177)

    This extract exposes the close connection between insanity and intoxication that pertained in this era, with the latter being regarded as either a cause or a species of the former. The effect of intoxication was thought to be akin to that of insanity, as it was held to render the defendant ‘disturbed in her mind’, or ‘out of his mind’, or to ensure that he ‘did not know what he did’.19 With evidence from an apothecary, Williams Edwards’ trial record also provides an example of early reliance on individuals with specialist knowledge of intoxication. I discuss the development of an expertise on intoxication in the next section of this chapter.

    As these two types of intoxication plea suggest, drunkenness was operating as a basis for informal exculpation of individuals charged with offences. These two types of plea were closely connected, both conceptually and in practice, in a way that reflected the then largely unelaborated conditions of criminal liability. As the close connection between insanity and intoxication suggests, the criminal law employed a minimally differentiated conceptualization of the abnormal mental states that might exculpate an individual.20 The informal process of exculpation was characterized by conceptual indeterminacy. This indeterminacy in the criminal law may be interpreted as an incident of what Nicola Lacey has referred to as ‘a thin doctrine of capacity as a condition of criminal responsibility’.21 Mindful of the state of development of a notion of criminal responsibility at this time, what Rabin interprets as recognition of a ‘spectrum of culpability’ might more accurately be attributed to the loose or ‘thin’ conception of responsibility then pertaining, and the nebulous boundary between (what would now be) factors in mitigation and affirmative defences that accompanied it.

    In the context of unelaborated legal structures of liability and responsibility, and in advance of a sophisticated account of the way in which intoxication affected a defendant's mental state, a robust common knowledge of alcohol and its effects provided an animating framework for exculpation on the basis of intoxicated incapacity. Paralleling the informal insanity plea, common knowledge of intoxication and its effects was part of what Lacey calls ‘local knowledge’, which informed ‘widely accepted judgments about criminality’ in the task of determining liability in (p.178) the eighteenth‐century criminal trial.22 It was common knowledge about intoxication that gave meaning to what Rabin calls the ‘brief suggestions’ that were used to ‘associate the crime and the accused with intoxicated incoherence’, rendering these ‘brief suggestions’ intelligible within informal legal practices.23 A plea based on a behaviour—the consumption of alcohol—which was familiar to key participants in the trial process enhanced its acceptability as an excuse. As Joel Eigen writes, in raising intoxication, defendants were attempting ‘to enlist the sympathy of the jury by overtly appealing to their own leisure activities’.24 In a way that is similar to proof of insanity at the same point in time, the significance of common knowledge of intoxication in this era meant that ordinary people could give evidence about and evaluate a defendant's drunkenness.25 The generalized social meaning of drunkenness—which was built on but not limited to experiential knowledge of alcohol and its effects—formed the knowledge context against which an expertise on intoxication developed.

    ‘The nature of her mania was madness from drink’:26 the Development of Expertise on Intoxication

    Social concerns about widespread alcohol consumption, which had appeared by the end of the eighteenth century, were amplified and elaborated by the appearance of expert knowledge about alcohol in the nineteenth century. The appearance of expert knowledges about alcohol consumption and its effects was itself part of a larger intellectual history of changing knowledge practices across the century.27 As I discuss in Chapter 6, on the level of elite knowledges, this development encompassed new objects of knowledge, and spawned new specializations and new intellectual‐cum‐social groups. Reflecting its place in a wider if loose alliance of knowledges about public health and public order which arose in the Victorian era, the burgeoning expert or specialist knowledge about intoxication encompassed bureaucratic or administrative, scientific, and medical, as well as an emergent psychiatric, knowledge. Each of these specialist knowledges shared a depiction of intoxication—by alcohol, and to a much lesser extent, by drugs such as opium—as a genuine object of expertise, about which it was possible to offer intelligible explanations about cause and effect.

    (p.179) Medical and emergent psychiatric knowledge about intoxication—which focused on the effect of alcohol on individuals—was one particular subset of this diffused expert knowledge. In keeping with the changed emphasis of developing psychiatric knowledge—from intellectual defect to ‘malfunctions in impulse control’—individual will had a prominent place here.28 Among medical and psychiatric experts, it is clear that a variety of attitudes and beliefs about drunkenness abounded.29 These can be usefully divided into two sets of attitudes.

    One set of expert medical attitudes regarding drunkenness held that it was a matter of individual choice and was thus within an individual's control. This attitude was given additional impetus by the temperance movement. As Martin Wiener suggests, the temperance movement was ‘probably the single most powerful and widespread social “cause” of the century’, ‘deeply coloring accepted notions of social respectability’.30 The new ‘respectability’ insisted upon ‘duty and the ability of men to maintain self‐management, an insistence that fit ill with drunkenness’.31 Wiener points to judicial statements condemning intoxication and argues that, although these sorts of statements had been made in court before, in the second half of the nineteenth century, they were enforced in a novel way.32 This declining tolerance for intoxication and the interpersonal violence it was believed to cause is also evident in the increase in the prosecution and punishment of public drunkenness (itself an offence) and drunken killings in the second half of the century.33 At the same time, an excuse based on intoxication was becoming less likely to prevent a murder conviction, although it continued to be taken into account to mitigate punishment in non‐capital cases.34

    Another set of expert medical attitudes about drunkenness depicted intoxicated individuals as suffering from what Wiener refers to as ‘diminished responsibility for drink’.35 This latter set of attitudes, which arose at the end of the nineteenth century, was accompanied by a ‘less autonomous image of drunkards’, meaning that individuals were not thought to be wholly culpable for their condition.36 This set of attitudes fed the growing approval of medical treatment for drunkenness apparent in the last decades of the century (although, as historians (p.180) have noted, this treatment was moral or disciplinary rather than medical37). An illustration of this set of attitudes is provided by the inebriates’ legislation that was enacted towards the end of the century. The Habitual Drunkards Act 1879 applied to a person who ‘by reason of habitual intemperate drinking of intoxicating liquors’ was ‘at time dangerous to himself or herself or to others, or incapable of managing himself or herself and his or her affairs’.38 Those classed as ‘habitual drunkards’ could choose to go to asylums, but, once there, could be detained against their will and forced to undergo a course of treatment.39 The 1879 Act was followed by the Inebriates Act 1898 (which substituted the Latinate term ‘inebriates’ for the morally‐laden reference to ‘habitual drunkards’).40 Under the 1898 Act, judges could sentence ‘habitual inebriates’ to detention in inebriate reformatories for up to three years, in addition to any other punishment that might be imposed.41 As scholars have suggested, this legislation applied to a subset of those who drank to excess, although it is indicative of a broader problematizing of alcohol consumption, and formed a useful locus for medical expertise.42

    These two sets of expert attitudes toward drunkenness were neither mutually exclusive, nor unconnected to attitudes to insanity or mental incapacity more generally. As Mariana Valverde argues, both popularly and medically, inebriety was regarded as a ‘hybrid object’, ‘part vice, part disease’.43 In Valverde's words, there was a ‘sort of refusal to medicalise’ intoxication, based on the idea that doctors should not waste their time with ‘social misfits’.44 Valverde suggests that efforts to medicalize habitual drunkenness or alcoholism (through diagnostic entities such as ‘moral insanity’ and ‘dipsomania’) were not successful because the courts and ordinary people believed that ‘heavy drinkers, if they really tried, could stop their destructive behaviour’.45 The persistence of the idea of individual culpability for drunkenness within a discourse of diminished responsibility for drink is the key to the social meaning of intoxication that emerged by the end of the period. The durability of this idea of personal culpability for drunkenness is reflected in the (p.181) contemporaneous development of the law on intoxicated offending, which I discuss below.

    The rise of an expert knowledge about intoxication impacted on the criminal trials concerning intoxicated offenders. The OBP trial records reveal the involvement of medical witnesses in court processes, and also expose the still inchoate distinction between claims to incapacity based on intoxication and those based on insanity (which was undergoing a process of formalization at the same time). For example, in the trial of William Murray for murder, in 1869, John Spencer Ferris, a member of the Royal College of Surgeons, is recorded as stating that ‘constant habitual drunkenness of that sort would provide a diseased state of the brain; an inflammatory condition’.46 Individuals such as Ferris testified alongside ordinary people, who continued to give evidence about and evaluate a defendant's intoxication. For instance, in the 1871 trial of James Alexander Mills, who was charged with shooting at the trustee of his bankrupt estate, John Ckibb, a fellow publican, testified:

    [W]hen sober he was a very good man indeed—I never saw him in a greater state of excitement than he was on the 9th—I don't think he was able to judge the consequences of his actions, and I made a remark to that effect when I left him.47

    The authority of ordinary people to detect and evaluate drunkenness represented an element of continuity with the previous era. In part because of the idea that doctors were thought to be wasting their time with ‘social misfits’, and in part because of the ubiquity of alcohol consumption, intoxication did not become exclusively the subject of expert knowledge in the nineteenth century. Particularly when compared with the development of expert medical knowledge about insanity by the same time, intoxication and its effects on individuals was not elite subject matter. As I discuss in Chapter 3 in relation to knowledge of mental incapacity in general, as a result of the rise of an expert knowledge, the knowledge ordinary people had regarding mental incapacity must be seen in a different light. The rise of expert or specialized knowledges about intoxication by alcohol produced a lay knowledge of intoxication. I take up this point below.

    The Formalization of the Law of Intoxicated Offending

    As discussed above, the advent of mass intoxication had produced new subjects of legal processes—individuals who were ‘in liquor’ at the time of their offence—but it did not immediately throw up new legal concepts. In the nineteenth century, informal practices around intoxicated offending began a process of formalization via which a legal entity of intoxication would be created. Reflecting the uncertainty that prevailed at the start of this era about the way in which intoxication affected criminal liability, the first half of the nineteenth century was marked by (p.182) inconsistent judicial approaches to intoxicated offending.48 Prefiguring the development of the dual meaning of intoxication for the criminal law that would emerge by the end of the century (as exculpatory abnormality and morally culpable conduct), some judges made ‘cautious concessions to the new [social] tolerance’ for alcohol,49 while other judges denied the exculpatory effect of intoxication. The decision of Grindley is evidence of a generous approach: Justice Holroyd held that, although intoxication could not excuse, if the material question was whether an act was pre‐meditated or done with a ‘sudden heat and impulse’ (as in the case of murder), intoxication could be taken into account.50 This direction was disapproved in the 1835 decision of Carroll, in which the Court took a more stringent line. In Carroll, Justice Park held that drunkenness was not relevant to the question of intention. Reviewing earlier case law, Justice Park stated that ‘there would be no safety for human life if [Grindley] was to be considered as law’.51 The rule in Carroll was itself overruled in Cruse in 1838, where the Court held that intoxication was relevant to the ‘question of intention: a person may be so drunk as to be unable to form any intention at all, and yet may be guilty of great violence’.52

    The indeterminacy of the relationship between intoxication and criminal liability, and the inconsistency in the relevant case law, was addressed in the middle of the century. In a way that reflects the rise of a capacity conceptualization of criminal fault at this time, intoxication came to be conceptualized as affecting an individual's capacity to form intent.53 This idea that intoxication potentially led to incapacity to form intent can be traced to the decision of Monkhouse in 1849. In Monkhouse, Justice Coleridge referred to the ‘general rule’ (now defunct) that juries are to presume a man [sic] to do what is the natural consequence of his act, and then stated that if an individual is proved to have been intoxicated, the question becomes ‘was he rendered by intoxication entirely incapable of forming the intent charged?’. In Monkhouse, the Court instructed the jury that the accused's intoxication could not be considered unless it was ‘such as to prevent [the individual] restraining himself from committing the act in question, or to take away from him the power of forming any specific intention’.54 No definition of ‘specific intention’ was provided by the Court in Monkhouse or in subsequent cases. From this point (p.183) onwards, although the term ‘specific intent’ was used, it was not used in all cases of intoxicated offending, nor used consistently.55 There was no indication in the case law as to how offences involving ‘specific intention’ were to be identified other than by ‘judicial designation’.56 In the twentieth century, aided by the creation of appellate courts, ‘specific intent’ would be invested with a distinct, technical meaning, denoting the intent required for an offence, over and above the intent to do the particular physical act that formed the external component of the offence.57

    The standard account of the appearance of the notion of ‘specific intent’ and the outlines of a recognizable legal entity of intoxication over these decades is one of judicial clemency: developments in the law are depicted as efforts to ameliorate the harshness of the prohibition on taking intoxication into account for the purposes of conviction.58 But the premise of the judicial clemency account of the development of intoxication law—the ‘severity’ of the common law—does not withstand close inspection. While, as in the previous era, intoxication did not constitute formal grounds for exculpation, it formed the basis of informal pleas, and, as Wiener argues with regard to homicide, intoxication became less not more likely to be admitted as an excuse or a mitigating factor over the nineteenth century.59 Rather than mitigating the ‘severity of the common law’ and by contrast with judicial activity in other areas (such as infanticide), judges seem to have had a role in tightening up the way evidence of intoxication could be used to avoid a conviction, or in mitigation of sentence.

    The development of the law on intoxication in this period is most accurately understood as one aspect of broader processes of formalization by which criminal law principles and practices more generally solidified into the form they take in the current era. As I discuss in Chapter 3, the central trend captured by what I call formalization is the movement away from the flexible and overtly moral‐evaluative aspect of the early modern criminal law towards more rigid processes and technical and precise rules that have come to comprise the law in the current era. By this account, it is not so much that the case law from Grindley in 1819 onwards represents judicial mitigation of the ‘severity of the common law’,60 but rather that, prompted by the formalization of other parts of the criminal law, including (p.184) the insanity doctrine, the parameters of the law relating to intoxicated offending were gradually defined and limited and an intoxication doctrine came to be understood as a discrete and circumscribed component of the criminal law corpus. This emerging law of intoxication centred on a notion of ‘specific intent’, to which I return below.

    From this point in the development of the law related to intoxicated offending, it became possible to detect the outlines of a recognizable legal entity of intoxication. But despite the nascent development of a notion of ‘specific intent’ by the second half of the nineteenth century, the pace of the development of the law was slow and uneven. The OBPs trial records provide evidence of the range of approaches to the relevance of intoxication persisting in the last decades of the nineteenth century. Throughout this period, the OBPs indicate that evidence of intoxication continued to form a basis for claims that an individual had not formed the requisite intent (‘I can assure you that though I was guilty of the sin of drunkenness, I had no intention of committing a burglary’;61 ‘All I can say is that at the time I committed my act I had been drinking, and drunken persons don't know exactly what they do’62), and seems to have constituted an ingredient in some acquittals.63 In addition, intoxication continued to provide grounds for recommendations to mercy (‘Unanimously recommended to mercy by the Jury in consequence of his drunkenness, and the absence of the child's mother’64).

    Further evidence of the slow pace of the formalization of the law on intoxicated offending is provided by the conceptual connection between intoxication and insanity, which, as K J M Smith points out, subsisted throughout the century.65 Insanity and intoxication were regarded as intimately connected, although the exact nature of the connection between the two was disputed.66 On the one hand, intoxication was conceptualized as a species of insanity, and there is evidence of this approach in the case law.67 Such an approach rested on the apparent similarity of the conduct of insane and intoxicated defendants (an approach that would be challenged both by the increasingly moralistic view of alcohol consumption and the development of expert knowledges about both insanity and intoxication). In Wiener's words, drunkenness, ‘when viewed in the form of delirium tremens and other physical disorders associated with perpetual drunkenness’ was amenable to (p.185) redescription as insanity.68 On the other hand, intoxication and insanity were also conceptualized as distinct if affiliated entities and, again, there is evidence of this approach in the case law.69 Even after a distinction between intoxication and insanity appeared, the two remained incompletely separated for legal purposes. It was not until the House of Lords decision in Beard's Case in the first decades of the twentieth century that the M'Naghten test was decisively rejected on the basis that it was inapplicable to an assessment of the effect of intoxication on criminal responsibility. In Beard's Case, Lord Birkenhead stated that there was a distinction between ‘the defence of insanity in the true sense caused by excessive drinking’ and ‘the defence of drunkenness which produces a condition such that a drunken man's mind becomes incapable of forming a specific intention’.70

    In addition to decisively rejecting the relevance of the M'Naghten Rules to cases of intoxication, Beard's Case also marked another step in the process of formalization of the law on intoxicated offending. This step entailed the explication of the relationship between intoxication and criminal fault via the elaboration of the meaning of ‘specific intent’. In Beard's Case, the Court stated that, where a ‘specific intent is an essential element in the offence, evidence of a state of drunkenness rendering the accused incapable of forming such an intent should be taken into consideration’ in determining where he or she had in fact formed intent.71 Although it is arguable that the reference to ‘specific intent’ in Beard's Case did not mean anything particular in the context,72 the decision has been taken as proof of the existence of a doctrine of ‘specific intent’, rather than a more nebulous notion of ‘specific intent’, by this time. The Beard approach to intoxication, fault, and ‘specific intent’ was adopted in subsequent appellate judgments,73 including by the House of Lords in DPP v Majewski.

    The development of a doctrine of ‘specific intent’ enabled the courts to carve out a principled way of circumscribing the exculpatory effect of intoxication and to deal (p.186) with intoxicated defendants in distinct ways, without impinging on the more general principles applicable to all defendants.74 In this sense, the rise of ‘specific intent’ can be interpreted along the same lines as the since‐altered rule that a defendant is presumed to have intended the probable consequences of his or her acts.75 By the time of Beard's Case, the rule regarding the probable consequences of a defendant's act, which had been a ‘general understanding’, had hardened into a presumption of law.76 As Lacey argues, the presumption provided a solution to ‘the problem of knowledge co‐ordination’, allowing courts to refer to a defendant's ‘interior mental world’ without requiring close investigation of that world.77 The doctrine of ‘specific intent’ is amenable to a parallel analysis: the idea of ‘specific intent’ refers to a subjective mental state but actually rests on a generalized construction of the altered capacities of intoxicated individuals. In referring to capacity to form intent, the doctrine of ‘specific intent’ collapses a question of fact (did the defendant form the requisite intent?) into the question of capacity (was the defendant capable of forming the requisite intent?).78 This generalized construction—that intoxication affects an individual's ability to form ‘sophisticated’ intentions—is held on ‘physiological grounds’, and based on either ‘the personal experience of judges or folk wisdom or a combination of the two’.79 The significance of lay knowledge of intoxication (invoked in an idea of ‘folk wisdom’) is that it functions to forestall certain arguments about what is known and not known about intoxication. I discuss the significance of lay knowledge in the penultimate section of this chapter.

    The Apogee of Formalization?: DPP v Majewski

    The formalization of the law of intoxication took a large step forward with the House of Lords decision of DPP v Majewski, which also sets out the current law of intoxication. The significance of this decision is such that it is worth considering closely. Majewski was involved in a bar brawl and was charged with three counts of assault occasioning actual bodily harm and three counts of assaulting a police officer in the execution of his duty. Majewski claimed he ‘completely blanked out’ and was (p.187) unaware of what he was doing because he had consumed alcohol and drugs (a mix of amphetamines and barbiturates). The trial judge had directed the jury that they were to ‘ignore the subject of drink and drugs as being in any way a defence’ to the assaults.80 Majewski was convicted on all counts and appealed. The Law Lords unanimously upheld his convictions. The Majewski decision provides that voluntary intoxication may be used to prove that an individual did not form the requisite mens rea for offences of ‘specific intent’.81 By contrast, in relation to a residual category of offences of ‘basic intent’, such as assault, an individual's voluntary intoxication cannot be taken into account when determining whether he or she formed the mens rea required by the offence.

    In restricting the admissibility of evidence of voluntary intoxication for offences of ‘basic intent’, the Majewski Court had to confront the significance of Section 8 of the Criminal Justice Act 1967. This statutory provision had altered the common law presumption, to which I referred above, that a man [sic] may be taken to have intended the natural and probable consequences of his actions. Section 8 of the 1967 Act provides that the jury is not ‘bound in law’ to infer intention in this way, but is to determine what the defendant intended or foresaw ‘by reference to all the evidence’.82 This provision might have been interpreted to invalidate any attempt to restrict the kind of evidence that could be taken into account in cases of intoxicated offending. However, the Majewski Court held that the reference in Section 8 to ‘all the evidence’ was a reference to ‘all the relevant evidence’, which meant that ‘if there is a substantive rule of law that in crimes of basic intent, the factor of intoxication is irrelevant…evidence with regard to it is quite irrelevant’.83 By adopting this reasoning, and constructing the question about the admissibility of evidence of intoxication as one of law rather than of evidence, the Law Lords justified the restriction on the admissibility of evidence of intoxication in ‘basic intent’ offences.

    Over and above the baseline rule that voluntary intoxication may be adduced as evidence in relation to an offence of ‘specific intent’ but not in relation to offences of ‘basic intent’, there have been two sources of ambiguity about what Majewski decided. The first source of ambiguity relates to the distinction between ‘specific intent’ and ‘basic intent’ offences. The Lords seem to have used the terms in three different ways.84 It was the approach that depicted ‘basic intent’ offences as those (p.188) where recklessness will suffice for liability that became the settled approach to Majewski and the doctrine of intoxication,85 although, relatively recently, the orthodoxy of this approach was called into question.86 The second source of ambiguity stemming from the Majewski decision relates to the way in which evidence of voluntary intoxication is to be treated where an individual is charged with an offence of ‘basic intent’. Again, on this point, the comments in Majewski could be interpreted in three different ways: first, that, where an intoxicated defendant was charged with a ‘basic intent’ offence, the prosecution would be required to prove only the actus reus of the offence;87 or, second, evidence of voluntary intoxication in offences of ‘basic intent’ would be taken to provide the mens rea for the offence (on the basis that the defendant was reckless as to the risk of becoming intoxicated);88 or, third, that evidence of voluntary intoxication is to be (p.189) disregarded in deciding whether the defendant formed the mens rea required for the offence.89 It is this third interpretation of the Majewski discussion of ‘basic intent’ that now seems to be orthodox. Of the possible interpretations of Majewski, this third interpretation does not involve an effective abrogation of the mens rea requirement of the offence. It does, however, significantly alter the context in which the defendant's state of mind is determined. This interpretation of Majewski means that, when considering the liability of a defendant charged with a ‘basic intent’ offence, the jury is asked the rather artificial question of whether he or she would have had the relevant mens rea if he or she had been sober.90

    Before turning to the developments that have taken place since Majewski was decided, it is worth noting the criticisms to which the decision has been subject. The first of the two broad lines of criticism of Majewski runs along the lines that the rules governing voluntary intoxication contravene the basic principles of criminal liability.91 As the Law Commission observes, if the normal rules of mens rea operated in cases of voluntary intoxication, a defendant who was unaware of the risk of harm resulting from his or her conduct would have to be acquitted.92 But, the restriction on the admissibility of evidence of voluntary intoxication in relation to offences of ‘basic intent’ means that this is not necessarily the case—the mens rea required of an intoxicated defendant is constructed without reference to one of the factual elements of the offence (or perhaps derived from the act of getting intoxicated in the first place).93 Because it excludes an ingredient of the fact scenario—self‐induced intoxication—from the adjudication process, the Majewski rule excludes certain intoxicated offenders from the standard subjectivist conception of mens rea.94 In this respect, the law represents a half‐way house of criminal (p.190) liability, sitting between objective and subjective liability.95 The second of the two broad lines of criticism of Majewski is that there is no clear or principled rationale for distinguishing between offences of ‘basic intent’ and offences of ‘specific intent’.96 This criticism feeds into a broader argument that the law on intoxicated offending is only explicable in public policy terms.97 Several commentators argue that, in the absence of legal logic or principle, offences have been categorized as either offences of ‘specific intent’ or ‘basic intent’ on policy grounds.98

    In the years since the Majewski decision was handed down, the ossification of the law around the notions of ‘specific intent’ and ‘basic intent’ has set the scene for what might turn out to be a retreat from the formalization trajectory that led to Majewski. Although a number of offences have been labelled offences of ‘specific intent’,99 and other offences have been identified as offences of ‘basic intent’,100 in the last few years, this offence‐by‐offence approach has been called into question. In 2009, the Law Commission stated that the view that all offences can be classified as (p.191) either ‘basic intent’ or ‘specific intent’ offences was ‘unhelpful’ and seems to have backed away from the rigidity of an offence‐by‐offence approach to intoxicated offending.101 The Law Commission acknowledged that the terms ‘specific intent’ and ‘basic intent’ are ‘ambiguous, misleading and confusing’, but nonetheless stated that, when properly understood, they refer to genuinely different mental or fault elements for criminal offences, and maintained that evidence of intoxication should only be able to be adduced in relation to some offences and not others.102

    Although the Law Commission's recent report on the law of intoxication seems to represent a move away from a rigid approach to the way intoxication affects liability, even under the Commission's proposed reforms, the law will still operate on a premise about the genuineness of a distinction between two different types of mental states, howsoever they are called. This idea that the mental states denoted by the labels ‘basic intent’ and ‘specific intent’ are meaningfully different from each other is a feature of lay knowledge of intoxication. As Valverde suggests, lay opinion holds that ‘people who are very drunk cannot form “higher” thoughts or complex intentions, but that they are capable of, and indeed particularly susceptible to, more “impulsive” acts’.103 This means that it is not only the notion of ‘specific intent’, but also a distinction between ‘specific intent’ and ‘basic intent’ that rests on lay knowledge of intoxication. I pick up this point again in the penultimate section of this chapter.

    Beyond the Bounds of Majewski: Amoral Intoxication

    Three types of intoxication lie beyond the bounds of the Majewski decision. In each type, the defendant shares an attenuation, or complete absence, of moral fault in relation to the intoxication. Carving out these kinds of cases from the reach of Majewski represents an attempt to ensure that the law on intoxicated offending does not over‐reach its moral foundations in the culpability associated with the consumption of alcohol and dangerous drugs. As Robinson writes, where a defendant caused the conditions of his or her own ‘defence’, but does so blamelessly, there is little justification for taking away his or her ‘defence’: he or she ‘is no more blameworthy…than is the actor who has made no causal contribution’ at all.104 Where the moral culpability underpinning the legal approach to (voluntary) intoxication is absent, the effects of that approach are unpalatable. Thus, even in their exceptional status, the legal treatment of these three types of intoxication (p.192) reflects the policy concerns permeating the law on intoxicated offending more broadly.

    (i) Involuntary Intoxication

    By contrast with voluntary intoxication, evidence of involuntary intoxication may be adduced in order to raise reasonable doubt as to whether the defendant formed the requisite mens rea of either ‘basic intent’ or ‘specific intent’ offences. While there is no definition of the term ‘involuntary intoxication’, the courts have adopted a narrow and moralized approach to classifying intoxication as ‘involuntary’.105 Although there is some evidence that a distinction between voluntary and involuntary intoxication first appeared some time ago,106 the precise way in which involuntary intoxication relates to mens rea has been explicated only recently. Even if intoxication is involuntary, it will not assist a defendant unless the intoxication negatived mens rea.107 In the controversial decision of Kingston, the courts considered the defendant's appeal against a conviction of indecent assault of a 15‐year‐old boy. Kingston claimed that, because he had been involuntarily intoxicated when his drink was laced with a drug, he should have been regarded as acting without the mens rea required for the offence. By contrast with the Court of Appeal, which allowed Kingston's appeal against conviction,108 the House of Lords upheld the conviction and affirmed the trial judge's direction that Kingston could be acquitted only if his involuntary intoxication meant that he did not or might not have formed the intention to assault the boy. If Kingston had formed the requisite mens rea, which the jury found he had, the fact that his behaviour was affected by a drug administered without his knowledge was no defence.109 In reaching this (p.193) conclusion, the House of Lords cautioned against relying on earlier dicta on involuntary intoxication.110

    (ii) Non‐Dangerous Drugs

    Although the traditional approach in the law of intoxication is that it applies to intoxication by all substances,111 the courts have carved out an exception to the traditional approach in the case of consumption of so‐called non‐dangerous drugs.112 In a thin line of case law, the courts have concluded that intoxication by non‐dangerous drugs will not be subject to the Majewski rules unless, in taking the drug, the defendant was reckless, being aware of the risk of aggressive or uncontrollable conduct but going ahead anyway. The main authority for the special case of non‐dangerous drugs is Hardie (and the earlier decision it purported to follow, Bailey).113 Hardie had taken some Valium tablets and started a fire inside a flat. He was charged and convicted of two different criminal damage offences, both of which were ‘basic intent’ offences. The Court of Appeal quashed Hardie's convictions, holding that, even if he had taken excessive quantities of this type of drug, this could not ‘in the ordinary way’ raise a conclusive presumption against the admission of evidence of intoxication for the purposes of disproving mens rea. The Court reasoned that Valium was ‘wholly different in kind from drugs which are liable to cause unpredictability or aggressiveness’, stating that, if the jury found that (p.194) the defendant had been unable to appreciate the risks of his actions, it should consider whether taking the Valium itself was reckless.114

    The way this particular vein of case law relating to intoxication by non‐dangerous drugs has opened up exposes courts’ reliance on lay knowledge about intoxication. The decisions of Bailey and Hardie reveal a reliance on what is generally known, or thought to be known, about the causes and effects of intoxication. In Hardie, the Court noted that ‘the same rule applies to both self‐intoxication by alcohol and intoxication by hallucinatory drugs…because the effects of both are well known and there is therefore an element of recklessness in the self‐administration of the drug’.115 The Court concluded that, by contrast, ‘there was no evidence that it was known to the appellant or even generally known’ that taking Valium could make a person aggressive or unable to appreciate risks to others.116 Similarly, as an explanation for exempting consumption of insulin from the reach of Majewski, the Bailey Court said that while ‘it is common knowledge that those who take alcohol to excess or certain sorts of drugs may become aggressive or do dangerous or unpredictable things’, there is no such knowledge about the effect of insulin.117 As one commentator has argued, the category of non‐dangerous drugs depends on what most people are supposed to believe about the drug, rather than any objective pharmacological properties of it.118

    (iii) Alcoholism

    Like intoxication via non‐dangerous drugs and involuntary intoxication, the special status of intoxication resulting from alcoholism represents the moral limits of the Majewski approach. Where an individual's intoxication is the result of a disease, his or her moral culpability is attenuated such that the Majewski rules appear unjust. Unlike intoxication, alcoholism (or chronic alcohol dependency) has been accepted as a disease for the purposes of the criminal law. Where intoxication can be shown to result from alcoholism, it will be able to be adduced as the basis for an insanity plea or a diminished responsibility plea, rather than (merely) an intoxication plea.119 Because insanity is generally available across the spectrum of criminal offences, the claim that a ‘disease of the mind’ is the result of alcoholism may be raised where a defendant is charged with either a ‘specific intent’ or ‘basic intent’ offence. Although alcoholism for the purposes of diminished responsibility (and insanity) has been interpreted more expansively in recent decisions (no longer requiring that the defendant must have consumed his or her first drink involuntari (p.195) ly to distinguish alcoholism from ordinary intoxication120), the condition and thus its exculpatory potential, is still strictly delimited.121

    Lay Knowledge of Intoxication in Criminal Law

    The result of the legal developments canvassed above is that, in the current era, the law of intoxicated offending comprises a complex set of rules. Against the background of the medical and psychiatric expertise about the effect of intoxication on individuals that arose in the nineteenth century, the formalization of an informal exculpatory plea produced a legal entity of intoxication that is now most accurately conceptualized as a ‘doctrine of imputation’. But the more moral‐evaluative grounding of the law belies the technical contours of the law on intoxicated offending, and the fact that the development of an expertise about intoxication went only some way toward covering the field of knowledge practices in criminal law. Space remained in criminal law practices for what I have called lay knowledge of intoxication. As mentioned above, and as I discuss in Chapter 3, the development of an expert knowledge of intoxication meant that the knowledge of ordinary people has to be seen in a different light. It was only as a result of the cleaving out of a set of expert knowledges from an undifferentiated general, common, or everyday knowledge about intoxication that it became possible to talk of a lay or non‐expert knowledge of intoxication—of alcohol and of other drugs (perhaps by analogy with alcohol). I suggest that this type of knowledge of intoxication continues to play a role in criminal law practices on intoxicated offending.

    One way of thinking about lay knowledge of intoxication relates to its practical role, as a basis for lay evaluation of claims based on intoxication. Because the question of whether an individual formed the requisite mens rea for an offence committed while intoxicated is a question of fact, where it is raised, the jury has a potentially significant role in assessing intoxication. The rules comprising the law on intoxication exclude intoxication from the consideration of jurors (or magistrates, when they act as fact‐finders) in the large number of cases in which the defendant is charged with a ‘basic intent’ offence, but, if a defendant is charged with a ‘specific intent’ offence, the issue of whether he or she formed the requisite intent (p.196) although intoxicated is decided by the jury.122 Over and above the role of lay knowledge as it informs lay evaluation by jurors, lay knowledge of intoxication informs the decision‐making of legal actors—including judges, magistrates, prosecution, and defence counsel. As I discuss in Chapter 3 (and also in Chapter 6 in relation to insanity), legal actors rely on lay knowledge in relation to mental incapacity—legal expertise is mixed with lay knowledge or non‐expertise when it comes to matters such as intoxication. As a result, the role of lay knowledge in criminal process does not begin and end with lay adjudication.

    By contrast with the role of lay knowledge, the practical role of expert knowledge of intoxication, in the form of expert evidence, is more circumscribed. It is notable that, in the current era, and relative to other mental incapacity doctrines, expert medical or scientific evidence has a low profile in the process of proving an intoxicated defendant's mental state. Expert evidence is sometimes adduced in support of the claim of intoxication, as it was in the case of Majewski.123 But, not only is there no requirement of expert evidence, there are dicta to indicate that knowledge of the effects of intoxication is properly a matter of non‐expert knowledge.124 The low profile of expert evidence in cases in which intoxication is pleaded indicates that it is lay rather than expert knowledge that governs the fact‐finding context of the intoxicated offending. As Valverde has written in relation to alcohol licensing laws, ‘knowledges of alcohol and of alcohol's effects on human bodies are regarded as lay rather than expert knowledges’.125 In part because medical and scientific experts have made few inroads into the law on intoxication, there has been little attempt to articulate the different effects of different substances, and, in practice, it seems that the law on intoxication applies to all intoxicants by way of analogy with alcohol, which is the intoxicant that has most often come to the attention of the courts. This is also the intoxicant with which lay people are most likely to be familiar.

    Stretching above its practical role in any particular instance, my study of the law of intoxication leads me to suggest that lay knowledge has a further, more discursive (p.197) part to play in criminal law practices. In my analysis, lay knowledge of intoxication has two specific roles and one further, more overarching role in criminal law. First, it bolsters the legal rules comprising the law on intoxicated offending in that it sustains the particularly complex and technical rules that make it up. As Valverde claims, and as mentioned above, the particular distinction between ‘basic’ and ‘specific’ intent seems to map onto lay beliefs about intoxication. In her words, the distinction between ‘two modes of consciousness/volition’—‘specific intent’ and ‘basic intent’—translates into the ‘lofty language of legal doctrine’ the commonsense, everyday views of the effects of alcohol on humans.126 As mentioned above, lay opinion holds that ‘people who are very drunk cannot form “higher” thoughts or complex intentions, but that they are capable of, and indeed particularly susceptible to, more “impulsive” acts’.127 Even absent empirical data bearing this out, it is clear that the legal discourse on intoxicated offending is constructed as if it were accurate. For example, in the 1981 decision of Lawrence, Lord Hailsham commented obiter that ‘since the days of Noah, the effects of intoxication have been known to induce the state of mind described in English as recklessness, and not to inhibit it, and for that matter to remove inhibitions in the field of intention and not to destroy intention’.128 Lord Hailsham's comment suggests that, as a matter of common knowledge, intoxication may affect the mind to the extent of recklessness (whether understood in a legal or a popular way) but not disturb intention. A legal distinction between ‘specific intent’ and ‘basic intent’ offences is constructed as if it tracks a genuine division between different mental states—and naturalizes that division.

    In addition, lay knowledge of intoxication and its effects has a second role in criminal law practices. Viewed as a whole, the part played by lay knowledge—in connecting the restrictions on the law of intoxication with moral culpability and with an idea about genuinely different mental states—may be interpreted as a bridge linking the intoxication law with the dominant subjective principles of mens rea or fault. As mentioned above, the law on voluntary intoxication as it applies to ‘basic intent’ offences represents a half‐way house of criminal liability: it is neither a wholly subjective nor a wholly objective form of mens rea. But, as Valverde has written about criminal cases generally, ‘“common knowledge” acts to forestall arguments about what a person did or did not know about alcohol in general and about his or her bodily capacities in particular’.129 Because knowledge about intoxication and its effects is non‐expert knowledge and is constructed as ‘common’, the individual can be presumed to know what ‘everyone’ knows.130 In this way, references to non‐expert knowledge about intoxication function to connect the general or objective (what everyone knows or is assumed to know) and the (p.198) particular or subjective (what the individual him or herself knows). Thus, within a dominant subjective rationale for liability, references to lay knowledge about intoxication function to justify what can be considered to be the artificial form of liability—absent a specific ingredient of the fact scenario—for ‘basic intent’ offences individuals commit while intoxicated.

    More generally again, there is a further role for lay knowledge of intoxication that I suggest is important in criminal law practices. This role for lay knowledge is derived from an assessment of the rhetorical force of expert scientific knowledge (which I discuss in Chapter 3). In relation to knowledge practices in the natural sciences, Steve Fuller has argued that worldly power is exercised by rhetorically drawing attention away from the fact that it also intervenes in that world and to the fact that the knowledge represents the world.131 The deployment of lay knowledge of intoxication—to connect the restrictions on the law of intoxication with moral culpability and with an idea about genuinely different mental states—works in a similar way in criminal law practices: with its everyday or commonsense connotations, it rhetorically draws attention to the idea of a morally neutral or descriptive statement of fact, and away from the idea of construction and contingency. As a construction of the material world, lay knowledge about intoxication, as deployed in criminal law, does not map onto an empirical reality but rather constitutes a particular story or narrative about that reality. The deployment of lay knowledge of intoxication in criminal law practices works to enmesh the moral‐evaluative with the descriptive, obscuring the former beneath the latter, and rendering what is a partial and contingent account apparently true and universal.132

    The Janus‐face of the Law of Intoxicated Offending

    With a close account of the law on intoxicated offending outlined, it is now possible to say something more about the controversy that continues to dog the law on intoxication. That controversy derives not just from a tension between principle and policy‐driven pragmatism. Rather, it finds its roots in the Janus‐face of the law, which encodes two different conceptualizations of intoxication—intoxication as exculpatory abnormality, on the one hand, and intoxication as morally culpable conduct, on the other. I discuss each of these two conceptions in turn, before pointing to evidence that suggests that these two conceptions are held in a fine balance in criminal law.

    In criminal law schemas, intoxication is understood as a species of mental incapacity and the doctrine encodes an idea of the abnormality of an intoxicated (p.199) individual.133 The construction of abnormality and its pejorative connotations is evident for instance in Majewski, where Lord Elwyn‐Jones referred to an individual who ‘consciously and deliberately takes alcohol and drugs…in order to escape from reality…and thereby disables himself from taking the care he might otherwise take’.134 In the case of intoxication (as opposed to other types of mental incapacity, such as insanity), this abnormality is temporary and not that uncommon—it is something a significant percentage of the population have experienced at least once. The ubiquity of intoxication poses a challenge for a construction of the intoxicated individual as abnormal and, as a result, this construction is a more tenuous one than that of the individual raising an insanity claim, for example. However, resting on the general absence of a disaggregation of alcohol and other intoxicants in the criminal law, the notion of abnormality subsists in the criminal law of England and Wales, even as intoxication pleas are less rare than those of insanity, for instance.135

    Alongside exculpatory abnormality, the legal entity of intoxication encodes an idea of intoxication as morally culpable conduct. This conception of intoxication is evident in the way in which intoxication has been quarantined from the law on automatism (which relates to unwilled or unconscious conduct)—on the basis that individuals seeking to rely on intoxication to defeat a criminal charge are not wholly free from fault. In addition, as discussed above, this idea about intoxication as morally culpable conduct is evidenced in the way in which certain types of intoxication—involuntary intoxication, intoxication from non‐dangerous drugs, and that resulting from the disease of alcoholism—have been carved out from the reach of Majewski in an attempt to ensure that the law on intoxicated offending does not over‐reach its moral foundations in individual culpability. In Majewski, Lord Edmund‐Davies contrasted cases of voluntary intoxication by drugs or alcohol with those excuses in which ‘the actor is wholly free from fault in relation to the onset of a mental state’.136 The idea of moral fault is also evident in the Majewski line of reasoning (itself now largely out of favour) that holds that getting intoxicated in the first place provides the requisite culpability for criminal liability.137 The idea (p.200) of intoxication as morally culpable conduct exposes the evaluative dimension of the law, which underlies its apparently precise and technical terminology.

    These two contradictory conceptualizations of intoxication—as exculpatory abnormality and morally culpable conduct—are suspended in a fine balance. Some evidence of this is provided by the perennially unimplemented proposal for an offence of dangerous or criminal intoxication. The idea of an offence of intoxication is difficult to swallow because such an offence would make overt the connection between intoxication and criminal liability, sabotaging the popular myth that intoxication is some kind of ‘defence’ to a criminal charge. The idea of an offence of intoxication has been on the law reform table for some decades. A set of reform proposals, which are broadly critical of Majewski, has centred on the creation of an offence of what has been called either ‘dangerous intoxication’ or ‘criminal intoxication’. In its 1975 report, the Butler Committee proposed the creation of an offence of ‘dangerous intoxication’, which would have been available as an alternative charge to another serious offence.138 Building on the unimplemented Butler proposal, in 1993, the Law Commission canvassed the introduction of an offence that it called ‘criminal intoxication’. This offence would have applied where an intoxicated defendant caused the harm proscribed by a number of enumerated offences (most of which involved personal violence or property damage).139 The proposals for an offence of ‘dangerous intoxication’ or ‘criminal intoxication’ have been criticized. One concern has been the catch‐all nature of such an offence.140 Another concern relates to social perceptions about the seriousness of the offence.141 In addition, concerns have been raised about the difficulty of proving that the defendant's awareness was ‘substantially impaired’, as required under the formulation of the offence the Law Commission considered.142 Behind these (p.201) particular concerns about an offence of ‘dangerous’ or ‘criminal intoxication’, there is a general if nebulous concern that such an offence is socially and politically unpalatable in that it impinges on what is otherwise, at least in relation to alcohol, a legally and socially sanctioned activity.

    Notes:

    (1) R v Lawrence [1981] 2 WLR 524, 530 per Lord Hailsham.

    (2) As I discuss in Chapter 2, although sometimes labelled an excuse or a defence, these rules work to impute liability to an individual, and I refer to the intoxication doctrine or law, or the law of intoxicated offending here.

    (3) As John Langbein argues, sentencing decisions and the procedure for determining guilt were collapsed into each other, as both were part of the one procedure: J H Langbein The Origins of the Adversary Criminal Trial (Oxford: OUP, 2003) 48, 57–60. Further, with the widespread use of capital punishment, there were many offences for which there was no distinction between conviction and punishment, although the royal prerogative of mercy meant that some defendants sentenced to death would not be hanged: Langbein The Origins of the Adversary Criminal Trial 60.

    (4) Reniger v Feogossa (1551) 75 ER 1, 31 extracted in DPP v Beard [1920] 1 AC 479, 494; see also J Hall ‘Intoxication and Criminal Responsibility’ (1944) 57(7) Harvard Law Journal 1045, 1046.

    (5) Beverley's Case (1603) 4 Co Rep 123, (1550) 1 Plowd 1, 19, extracted in D McCord ‘The English and American History of Voluntary Intoxication to Negate Mens Rea’ (1990) 11 Journal of Legal History 372, 374. Referring to Reniger v Feogossa and Beverley's Case, one commentator has argued that they may be interpreted to indicate that, in addition to being no defence at common law, intoxication was an aggravating factor: see McCord ‘The English and American History’ 373; see also DPP v Beard [1920] AC 479, 494 per Lord Birkenhead. However, this argument seems untenable as there is no evidence that the allegedly aggravating effect of intoxication had any practical effect on liability or sentence (R U Singh ‘History of the Defence of Drunkenness in English Criminal Law’ (1933) 49 Law Quarterly Review 528, 531–2; see also H Fingarette ‘Disabilities of Mind and Criminal Responsibility—A Unitary Doctrine’ (1976) 76(2) Columbia Law Review 236, 238–9).

    (6) P McCandless ‘“Curses of Civilization:” Insanity and Drunkenness in Victorian Britain’ (1984) 79 British Journal of Addiction 49; see also R Porter Flesh in the Age of Reason: The Modern Foundations of Body and Soul (London: Norton, 2003) 399; D Rabin ‘Drunkenness and Responsibility for Crime in the Eighteenth Century’ (2005) 44 Journal of British Studies 457, 466; J Warner ‘The Naturalization of Beer and Gin in Early Modern England’ (1997) 24 Contemporary Drug Problems 373, 374.

    (7) Porter Flesh in the Age of Reason 399; N Walker Crime and Insanity in England (Vol 1: The Historical Perspective) (Edinburgh: Edinburgh University Press, 1968) 177.

    (8) Rabin ‘Drunkenness and Responsibility for Crime’ 476; see also McCandless ‘ “Curses of Civilization” ’ 52; D Rabin Identity, Crime and Legal Responsibility in Eighteenth Century England (Basingstoke: Palgrave Macmillan, 2004) 18; M Valverde Law's Dream of Common Knowledge (Princeton: Princeton University Press, 2003) 150–1.

    (9) Rabin ‘Drunkenness and Responsibility for Crime’ 459.

    (10) Porter Flesh in the Age of Reason 399.

    (11) Matthew Hale, Historia placitorum coronae (The history of the pleas of the crown) (1st American edn by W A Stokes and E Ingersoll, Vol 1 Philadelphia, 1847) [32], in The Making of Modern Law database 〈http://galenet.galegroup.com/servlet/MOML〉 (last accessed 26 September 2011). In relation to the practical disregard for the prohibition on intoxication as an excuse, see Rabin ‘Drunkenness and Responsibility for Crime’ 457–8.

    (12) ‘Drunkenness and Responsibility for Crime’ 458. While Rabin refers to an ‘informal intoxication defence’, the unrefined nature of structures of criminal liability seems to warrant the looser term plea instead.

    (13) See Rabin Identity, Crime and Legal Responsibility 79 and Rabin ‘Drunkenness and Responsibility for Crime’ 469.

    (14) ‘Drunkenness and Responsibility for Crime’ 471–2. According to Rabin, this type of informal plea based on intoxication was more likely to be raised by men than women because ‘the image of a drunk woman…might incur only more disapproval’: Identity, Crime and Legal Responsibility 79.

    (15) OBP, George Stone, 12 September 1787 (t17870912–15).

    (16) Rabin Identity, Crime and Legal Responsibility 80.

    (17) Rabin ‘Drunkenness and Responsibility for Crime’ 473, 475. Rabin suggests that women defendants more commonly featured in this category of informal intoxication plea: see Identity, Crime and Legal Responsibility 83.

    (18) OBP, William Edwards, 20 October 1784 (t17841020–10).

    (19) See OBP, Mary Jones, 18 May 1768 (t17680518–39); OBP, Thomas Haycock, 28 June 1780 (t17800628–34); and OBP, Thomas Baggot, 28 June 1780 (t17800628–113) respectively.

    (20) Connecting her study of eighteenth-century criminal trials to the broader idea of a ‘culture of sensibility’ that rose to the fore in the 1700s, Rabin interprets the intoxication cases to reveal the existence of a notion of ‘partial responsibility, a spectrum of culpability’ in the criminal law: see ‘Drunkenness and Responsibility for Crime’ 477. According to Rabin, the possibility of diminished but not abrogated responsibility, whereby ‘drunkenness might place one closer to the excusable end without implying innocence’, evidences ‘gradations of responsibility’: ‘Drunkenness and Responsibility for Crime’ 476–7. However, it seems to me that the notion of criminal responsibility was not sufficiently elaborate at this time to support such a sophisticated conceptualization.

    (21) N Lacey ‘Responsibility and Modernity in Criminal Law’ (2001) 9(3) Journal of Political Philosophy 249, 261. Lacey argues that, in this era, a defendant's capacities were merely components of his or her character, which was the object of evaluation during a trial (263). Rabin herself appears to acknowledge the interconnectedness of considerations of what she refers to as the ‘language of excuse’ and character in the eighteenth-century trial context: see Identity, Crime and Legal Responsibility 112–31.

    (22) Lacey ‘Responsibility and Modernity in Criminal Law’ 265.

    (23) Rabin ‘Drunkenness and Responsibility for Crime’ 468. As Joel Eigen writes, ‘no experts were needed to explain the effects of liquor’ to juries—it was well known that alcohol could ‘inflame passions, cloud thinking and inhibit the will:’ J P Eigen Witnessing Insanity: Madness and Mad Doctors in the English Court (New Haven: Yale University Press, 1995) 168.

    (24) Witnessing Insanity 168; see also Rabin Identity, Crime and Legal Responsibility 79.

    (25) See, for example, the trial of Thomas Taplin (OBP, Thomas Taplin, 28 June 1780 (t17800628–18)), in which a friend of Taplin's testified that ‘when he gets in liquor [the defendant] is void of his senses’. In relation to insanity, see Chapter 6.

    (26) OBP, Emma Brown, 6 May 1878 (t18780506–499).

    (27) For discussion, see S Collini Public Moralists: Political Thought and Intellectual Life in Britain, 1850–1930 (Oxford: Clarendon Press, 1991).

    (28) See M Wiener Reconstructing the Criminal: Culture, Law and Policy in England, 1830–1914 (Cambridge: CUP, 1990) 26.

    (29) For further discussion, see M Valverde Diseases of the Will: Alcohol and the Dilemmas of Freedom (Cambridge: CUP, 1998) 49.

    (30) M Wiener Men of Blood: Violence, Manliness and Criminal Justice in Victorian England (Cambridge: CUP, 2004) 255.

    (31) Men of Blood 261. For a discussion of the gender dimensions of expert attitudes to alcohol, see M Valverde ‘ “Slavery from Within:” The Invention of Alcoholism and the Question of Free Will’ (1997) 22(3) Social History 251.

    (32) Wiener Men of Blood 260.

    (33) Men of Blood 256.

    (34) K J M Smith Lawyers, Legislators and Theorists: Developments in English Criminal Jurisprudence 1800–1957 (Oxford: Clarendon Press, 1998) 341.

    (35) M Wiener Reconstructing the Criminal 295.

    (36) Reconstructing the Criminal 294.

    (37) See, for example, G Johnstone ‘From Vice to Disease? The Concepts of Dipsomania and Inebriety, 1860–1908’ (1996) 5 Social and Legal Studies 37. Johnstone argues that the main goal of reform, reformers, and reformatories was moralization, specifically focused on irresponsibility and inefficiency, rather than medicalization.

    (38) ‘An Act to Facilitate the control and cure of Habitual Drunkards’ 60 & 61 Vict. c.60. See G Johnstone, ‘From Vice to Disease?’ for discussion.

    (39) Valverde Diseases of the Will 77–8; see also Wiener Reconstructing the Criminal 295.

    (40) Reconstructing the Criminal 297.

    (41) M Ajzenstadt, and B Burtch ‘Medicalization and Regulation of Alcohol and Alcoholism: The Professions and Disciplinary Measures’ (1990) 13 International Journal of Law and Psychiatry 127, 138; D Garland Punishment and Welfare: A History of Penal Strategies (Aldershot: Gower, 1985) 20.

    (42) See Valverde ‘“Slavery from Within”’ and G Johnstone ‘From Vice to Disease?’.

    (43) Valverde Diseases of the Will 51. Valverde argues that the hybrid status of intoxication meant that it was easily assimilated into the late Victorian branch of evolutionary science of degeneration theory in which ‘bodily features were moralized and moral vices were blamed for causing physical degeneration’. See also H Rimke and A Hunt ‘From Sinners to Degenerates: The Medicalization of Morality in the Nineteenth Century’ (2002) 15(1) History of the Human Sciences 59, 73–9.

    (44) Valverde Diseases of the Will 49–50.

    (45) Diseases of the Will 2.

    (46) OBP, William Murray, 12 July 1869 (t18690712–652).

    (47) OBP, James Alexander Mills, 18 September 1871 (t18710918–695).

    (48) McCord ‘The English and American History’ 376; R Smith Trial by Medicine: Insanity and Responsibility in Victorian Trials (Edinburgh: Edinburgh University Press, 1981) 85.

    (49) Walker Crime and Insanity in England (Vol 1) 178.

    (50) R v Grindley (1819) 1 C & M 8, extracted in DPP v Beard [1920] AC 479, 495.

    (51) Rex v Carroll (1835) 7 C & P 145. See also M J Wiener ‘Judges and Jurors: Courtroom Tensions in Murder Trials and the Law of Criminal Responsibility in Nineteenth Century England’ (1999) 17 Law and History Review 467, 490–1.

    (52) Reg v Cruse (1838) 8 C & P 541, cited in DPP v Beard [1920] AC 479, 497; see also Reg v Meakin (1836) 173 ER 132.

    (53) On capacity, see Lacey ‘Responsibility and Modernity in Criminal Law’. As Lacey argues, between the eighteenth and twentieth centuries, the English criminal process was marked ‘by a broad movement from ideas of responsibility as founded in character to conceptions of responsibility as founded in capacity:’ ‘Responsibility and Modernity in Criminal Law’ 250. See also N Lacey ‘Psychologising Jekyll, Demonising Hyde: The Strange Case of Criminal Responsibility’ (2010) 4 Criminal Law and Philosophy 109.

    (54) R v Monkhouse (1849) 4 Cox CC 55, cited in DPP v Beard [1920] AC 479, 497–8.

    (55) S Gough ‘Intoxication and Criminal Liability: The Law Commission's Proposed Reforms’ (1996) 112 Law Quarterly Review 335, 343.

    (56) Smith Lawyers, Legislators and Theorists 241.

    (57) DPP v Majewski [1977] AC 443, 478–9 per Lord Simon; R v Heard [2007] 3 WLR 475, 485; McCord ‘The English and American History’ 383; J Horder ‘Sobering Up? The Law Commission on Criminal Intoxication’ (1995) 58(4) Modern Law Review 534; see also Law Commission for England and Wales Intoxication and Criminal Liability (Cm 7526) (Law Com No 314, 2009).

    (58) This judicial clemency account has a wide currency among practitioners and academics. See, for example, DPP v Majewski [1977] AC 443, 471 per Lord Elwyn‐Jones LC and 496 per Lord Edmund‐Davies; G Dingwall, ‘Intoxicated Mistakes and the Need for Self‐Defence’ (2007) 70(1) Modern Law Review 127, 129; McCord ‘The English and American History’ 378; Rabin ‘Drunkenness and Responsibility’ 458; Smith Lawyers, Legislators and Theorists 100–2.

    (59) Indeed, according to Wiener, in assault trials at the end of the nineteenth century, drunkenness became primarily an aggravating rather than mitigating factor: see Wiener Men of Blood 258.

    (60) DPP v Beard [1920] AC 479, extracted in DPP v Majewski [1977] AC 443, 452; see also DPP v Majewski [1977] AC 443, 488 per Lord Salmon.

    (61) See OBP, Charles Wright, 30 November 1863 (t18631130–77).

    (62) OBP, Emma Brown, 6 May 1878 (t18780506–499).

    (63) See for example, OBP, James Hoddinott, 3 April 1854 (t18540403–563) (where an acquittal seemed to flow from a combination of the defendant's drunkenness, an external blow from a policeman's staff, and his good character), and OBP, Susannah McKenzie, 2 July 1855 (t18550702–723) (where liquor, the shock of the baby's death, and the possibility of accidental suffocation all seemed to play a part).

    (64) OBP, William Smith, 24 November 1851 (t18511124–61).

    (65) Smith Lawyers, Legislators and Theorists 239–40.

    (66) McCandless ‘“Curses of Civilization”’ 52, 54; Valverde Diseases of the Will 47–8.

    (67) See, for instance, the decision of Wheeler and Batsford v Alderson, where the Court described intoxication as ‘in truth temporary insanity; the brain is incapable of discharging its proper functions: there is temporary mania—but that species of derangement, when the exciting cause is removed, ceases’ ((1831) 3 Hog Ecc 574, 602, extracted in A C E Lynch ‘The Scope of Intoxication’ [1982] Criminal Law Review 139, 141).

    (68) Wiener ‘Judges and Jurors’ 503; see also Wiener Men of Blood 272.

    (69) A distinction between insanity (‘alcoholic mania’) and intoxication was drawn in the 1881 decision of Davis (R v Davis (1881) 14 Cox CC 563; see also Singh ‘History of the Defence of Drunkenness’ 541), where Justice Stephen stated that ‘drunkenness is one thing, and the diseases to which drunkenness leads are different things’ (extracted in ‘History of the Defence of Drunkenness’ 541). The jury was directed to return a verdict of ‘not guilty by reason of insanity’ if they thought the defendant had been suffering a distinct disease of the mind caused by drinking, and if by that reason, he did not know his act was wrong (see ‘History of the Defence of Drunkenness’ 541).

    (70) DPP v Beard [1920] AC 479, 500. The Court concluded that insanity and intoxication are different defences, and that it is ‘inconvenient to use the same language in charging juries in relation to different defences’ (506).

    (71) DPP v Beard [1920] AC 479, 499. In reaching this conclusion, the Court criticized the Court of Criminal Appeal in R v Meade [1909] 1 KB 895 for connecting exculpatory intoxication with the ability to foresee consequences: Beard's Case at 504–5; see also Singh, ‘History of the Defence of Drunkenness’ 543.

    (72) See Law Commission for England and Wales Legislating the Criminal Code: Intoxication and Criminal Liability (Law Com No 229, 1995) para 3.8; see also J C Smith ‘Intoxication and the Mental Element in Crime’ in Essays in Memory of Professor F.H. Lawson (London: Butterworths, 1986) 122.

    (73) In Bratty v Attorney‐General for Northern Ireland [1963] AC 386, Lord Denning stated obiter that if a ‘drunken man is so drunk that he does not know what he is doing, he has a defence to any charge…in which a specific intent is essential’ (410). Similarly, in Attorney‐General for Northern Ireland v Gallagher [1963] AC 349, Lord Denning stated that ‘if a man is charged with an offence in which a specific intention is essential…then evidence of drunkenness which renders him incapable of forming that intention, is an answer’ (381).

    (74) As Stephen Gough argues, the doctrine of ‘specific intent’ worked to distinguish certain kinds of offences—those that specifically required intent—from the general milieu, which merely required ‘malice’, effectively a negligence standard that intoxication would not negate: Gough ‘Intoxication and Criminal Liability’ 344.

    (75) As Keith Smith argues, the ‘underlying rationale’ of ‘specific intent’ offences may be seen as ‘derivative’ of this rule: Lawyers, Legislators and Theorists 241.

    (76) E Griew ‘States of Mind, Presumptions and Inferences’ in P Smith (ed) Criminal Law; Essays in Honour of JC Smith (London: Butterworths, 1987) 69.

    (77) N Lacey ‘In Search of the Responsible Subject: History, Philosophy and Social Sciences in Criminal Law Theory’ (2001) 64(3) Modern Law Review 350, 370.

    (78) A D Gold ‘An Untrimmed “Beard”: The Law of Intoxication as a Defence to a Criminal Charge’ (1976–77) 19 Criminal Law Quarterly 34, 42.

    (79) See McCord ‘The English and American History’ 384, 378.

    (80) Extracted in DPP v Majewski [1977] AC 443, 467 per Lord Elwyn‐Jones.

    (81) See DPP v Majewski [1977] AC 443.

    (82) As a result of this statutory provision, the presumption about intention no longer exists as a matter of substantive law: see R v Sheehan; R v Moore [1975] 1 WLR 739, 743; for analysis, see Lacey ‘In Search of the Responsible Subject’ 370.

    (83) DPP v Majewski [1977] AC 443, 475 per Lord Elywn‐Jones; see also 484 per Lord Salmon and 497 per Lord Edmund Davies.

    (84) Suggesting that ‘specific intent’ is similar to ‘ulterior intent’, Lord Elwyn‐Jones cited with approval a passage from DPP v Morgan [1976] AC 182, which stated that crimes of ‘basic intent’ are those in which the mens rea does not go beyond the actus reus (DPP v Majewski [1977] AC 443, 471). Lord Simon seemed to adopt a similar if more expansive approach, defining ‘specific intent’ offences as those where the prosecution must ‘prove that the purpose for the commission of the act extends to the intent expressed or implied in the definition of the crime’ (DPP v Majewski [1977] AC 443, 479). Last, a number of the Lords appeared to suggest that ‘basic intent’ offences are those where recklessness will suffice for liability (DPP v Majewski [1977] AC 443, 474–5 per Lord Elwyn‐Jones; 479 per Lord Simon; 498 per Lord Russell). See generally A R Ward, ‘Making Some Sense of Self‐Induced Intoxication’ (1986) 45(2) Criminal Law Journal 247, 247–8.

    (85) See, for example, R v Caldwell [1982] AC 341, 355 per Lord Diplock.

    (86) In R v Heard [2007] 3 WLR 475, the Court of Appeal upheld the defendant's conviction for the sexual assault of a police officer. Heard had appealed on the basis that the offence was one of ‘specific intent’ and that therefore evidence of his voluntary intoxication should have been admissible. In dismissing the appeal, the Court of Appeal commented obiter that ‘specific intent’ is aligned to ‘ulterior intent’ and defined ‘specific intent’ offences as those which require ‘proof of a state of mind addressing something beyond the prohibited act itself, namely its consequences’ (485). According to this approach to Majewski, the distinction between ‘basic intent’ and ‘specific intent’ offences is a distinction between ‘intention as applied to acts considered in relation to their purposes’ (‘specific intent’) and ‘intention as applied to acts apart from their purposes’ (‘basic intent’) (485). Thus, because sexual assault required merely intentional touching, it was a ‘basic intent’ offence (481).

    (87) See Law Commission for England and Wales Intoxication and Criminal Liability (Law Com No 127, 1993) para 3.17. In a comment that exposes the moralized dimension of the law on intoxication, in DPP v Majewski [1977] AC 443, Lord Elwyn‐Jones stated that the defendant's conduct in voluntarily ‘reducing himself by drugs or drink’ provides ‘the evidence of mens rea, of guilty mind certainly sufficient for crimes of basic intent’ (474–5). On this interpretation, the defendant's intoxication effectively substitutes for the mens rea for a ‘basic intent’ offence: see Horder ‘Sobering Up?’ 536; G Williams Textbook of Criminal Law (London: Stevens, 1978) 428. Some commentators have concluded that this creates a situation of strict liability: see C Mitchell ‘The Intoxicated Offender—Refuting the Legal and Medical Myths’ (1988) 11 International Journal of Law and Psychiatry 77, 84; M T Thornton ‘Making Sense of Majewski’ (1980–81) 23 Criminal Law Quarterly 464, 484–5.

    (88) Support for this second possible interpretation of the Majewski decision is provided by several of the Law Lords’ opinions. For example, Lord Simon stated that ‘a mind rendered self‐inducedly insensible (short of M'Naghten insanity), through drink or drugs…is as wrongful a mind as one which consciously contemplates the prohibited act’ (DPP v Majewski [1977] AC 443, 479; see also R v Hardie (1985) 80 Cr App R 157, 162 per Parker LJ). Lord Elwyn‐Jones, Lord Edmund‐Davies and Lord Russell were also prepared to regard voluntary intoxication as a form of recklessness. Lord Elwyn‐Jones, for instance, stated that a person who ‘of his own volition takes a substance which causes him to cast off the restraints of reason and conscience’ adopts a ‘reckless course of conduct and recklessness is enough to constitute the necessary mens rea in assault cases’ (474–5). This overtly moralized approach means that voluntary intoxication is effectively one of the forms of mens rea for offences of ‘basic intent’: A Dashwood ‘Logic and the Lords in Majewski’ [1976] Criminal Law Review 532, 538. As critics of Majewski have noted, this approach to intoxication shifts the inquiry back in time to the point at which the defendant became intoxicated, thus contravening the correspondence principle which requires that mens rea and actus reus coincide in time in order to ground liability, and adopts a broad lay, as opposed to legal, definition of recklessness: see Dashwood ‘Logic and the Lords in Majewski’ 541; S Gardner ‘The Importance of Majewski’ (1994) 14(2) Oxford Journal of Legal Studies 279, 281; Law Commission for England and Wales Intoxication and Criminal Liability paras 4.34–4.35.

    (89) As Lord Elwyn‐Jones stated, juries should be instructed that they ‘can ignore the subject of drink or drugs as being in any way a defence’ to charges of ‘basic intent’ (DPP v Majewski [1977] AC 443, 476). This interpretation of Majewski was upheld in the Court of Appeal decisions of R v Woods (1982) 74 Cr App Rep 312 and R v Richardson and Irwin (1999) 1 Cr App Rep 392.

    (90) Horder ‘Sobering Up?’ 541–2.

    (91) A number of commentators critique Majewski on this basis: see, for example, Law Commission for England and Wales Intoxication and Criminal Liability (Law Com No 127, 1993) para 3.2; R D Mackay Mental Condition Defences in the Criminal Law (Oxford: Clarendon Press, 1995) 148; G Virgo ‘The Law Commission Consultation Paper on Intoxication and Criminal Liability: Part 1: Reconciling Principle and Policy’ [1993] Criminal Law Review 415, 418; Williams Textbook of Criminal Law 424.

    (92) Law Commission for England and Wales Intoxication and Criminal Liability para 1.6.

    (93) This construction of the law of intoxicated offending contravenes the principle that the burden of proof of all elements of the offence is on the prosecution as per Woolmington v DPP [1935] All ER 1. As Robinson writes in the US context, the law on intoxication relies on ‘rough‐and‐ready rules that only roughly approximate the results dictated by the culpability principle’ (P Robinson ‘Causing the Conditions of One's Own Defense: A Study of the Limits of Theory in Criminal Law Doctrine’ (1985) 71(1) Virginia Law Review 1, 13). In relation to the act of getting intoxicated in the first place, while it may be labelled reckless, this amounts to a lay usage of that term because the recklessness relates simply to the fact of becoming intoxicated, not to the foreseeability of the risk of harm (Smith ‘Intoxication and the Mental Element in Crime’ 125; Virgo ‘The Law Commission Consultation Paper on Intoxication and Criminal Liability’ 418).

    (94) This subjectivist conception holds that the cardinal mental state or fault element in the criminal law of the late modern era is subjective fault, where an individual is judged according to what they knew, perceived, or intended at the time of the offence. The compromise extends beyond subjective mental states because, in cases of negligence liability, intoxicated mistakes are regarded as unreasonable as a matter of law: see Dingwall ‘Intoxicated Mistakes’. For a critical analysis of subjectivism, see A Norrie Crime, Reason and History: A Critical Introduction to Criminal Law (London: Butterworths, 2001).

    (95) As Lord Edmund‐Davies stated in Majewski, the intoxication law represents ‘a compromise between the imposition of liability upon inebriates in complete disregard of their condition (on the alleged ground that it was brought on voluntarily), and the total exculpation required by the individual's actual state of mind at the time he committed the harm in issue’: see DPP v Majewski [1977] AC 443, 495.

    (96) Norrie has referred to the ‘basic intent’/‘specific intent’ distinction as a ‘distinction without a real difference’: see A Norrie Law, Ideology and Punishment: Retrieval and Critique of the Liberal Idea of Criminal Justice (London: Kluwer Academic Publishers, 1990) 172. A number of commentators have critiqued Majewski on this basis: see, for example, Smith ‘Intoxication and the Mental Element in Crime’ 129; Criminal Law Revision Committee Fourteenth Report: Offences Against the Person (Cmnd 7844, 1980) para 258; Law Commission for England and Wales Legislating the Criminal Code: Intoxication and Criminal Liability (Law Com No 229, 1995) para 3.27.

    (97) This policy end has resulted in a law of intoxication that is acknowledged to be an uneasy compromise between the standard meaning of the mens rea requirement on the one hand, and the goals of deterrence and social protection on the other: S Bugg ‘Intoxication and Liability: A Criminal Law Cocktail’ (1984–1987) 5 Auckland University Law Review 144, 145; Hall ‘Intoxication and Criminal Responsibility’ 1054; Smith Lawyers, Legislators and Theorists 338; Virgo ‘The Law Commission Consultation Paper on Intoxication and Criminal Liability’ 415. Achieving this ‘compromise’ involves exempting voluntarily intoxicated defendants from the standard subjectivist conception of mens rea, and, in cases of negligence liability, regarding intoxicated mistakes as unreasonable as a matter of law.

    (98) See, eg, Mackay Mental Condition Defences 150; Smith ‘Intoxication and the Mental Element in Crime’ 120. According to this criticism, the division of offences into those of ‘specific intent’ and those of ‘basic intent’ is a device utilized to restrict the number of outright acquittals of intoxicated defendants, while at the same time recognizing that ‘severe cases of intoxication may result in a lack of mens rea:’ Mackay Mental Condition Defences 150.

    (99) The courts have held that offences of ‘specific intent’ include murder (DPP v Beard [1920] AC 479), an attempt to commit any offence (Durante [1972] 3 All ER 962), theft (Ruse v Read [1949] 1 KB 377) and wounding with intent under Offences Against the Person Act 1861, s 18 (Bailey [1983] 1 WLR 760).

    (100) Offences of ‘basic intent’ include assault (R v Burns (1973) 58 Cr App R 364), assault occasioning actual bodily harm (Majewski [1977] AC 443, 499 per Lord Russell), criminal damage where the mens rea is alleged to be recklessness (R v Caldwell [1982] AC 341; R v O'Driscoll (1977) 65 Cr App R 50), involuntary manslaughter (DPP v Newbury [1977] AC 500, 509), maliciously inflicting wounds or grievous bodily harm under Offences Against the Person Act 1861, s 20 (Bailey [1983] 1 WLR 760), the offence of rape, as it was constructed prior to the Sexual Offences Act 2003 (Majewski [1977] AC 443, 500 per Lord Russell; R v Eatch [1980] Crim LR 650) and sexual assault in relation to touching per Sexual Offences Act 2003, s 3 (R v Heard [2007] 3 WLR 475, 485–6 per Hughes LJ).

    (101) Law Commission for England and Wales Intoxication and Criminal Liability (Law Com No 214, 2009) para 2.22 and Part 2 more generally. The Commission proposed abandoning the use of the terms ‘specific intent’ and ‘general intent’. The possibility that the ‘basic intent’/‘specific intent’ approach to the law of intoxicated offending would prove problematic was foreshadowed by Stephen White: see S White ‘Offences of Basic and Specific Intent’ [1989] Criminal Law Review 271.

    (102) Intoxication and Criminal Liability (Law Com No 214, 2009) paras 1.28 and 3.33–3.34; see paras 3.46–3.52 for the specific recommendations.

    (103) Valverde ‘ “Slavery from Within” ’ 258–9 and Valverde Diseases of the Will 196; see also McCord ‘The English and American History’ 384.

    (104) Robinson ‘Causing the Conditions of One's Own Defense’ 8.

    (105) Consuming a seemingly non‐alcoholic drink that has been laced with alcohol will be considered involuntary intoxication (R v Allen [1988] Crim LR 698) but underestimating the effect of alcoholic substances will not (R v Eatch [1980] Crim LR 650).

    (106) In his treatise, referred to above, Matthew Hale refers to intoxication by the ‘contrivance’ of others, or as a result of treatment by a physician, which, in contrast to voluntary drunkenness, is an excuse for crime: see Matthew Hale, Historia placitorum coronae (The history of the pleas of the crown) (1st American edn, by WA Stokes and E Ingersoll, Vol 1 Philadelphia, 1847) [32], in The Making of Modern Law database 〈http://galenet.galegroup.com/servlet/MOML〉 (last accessed 26 September 2011). Similarly, in R v Pearson (1835) 2 Lew 144, the Court stated that a defendant ‘made drunk by strategem or the fraud of another’ is not responsible for his or her actions (extracted in R v Kingston [1995] 2 AC 355, 366 per Lord Mustill). Hale's comments about involuntary intoxication never received direct judicial endorsement (Smith Lawyers, Legislators and Theorists 340), and it is possible that, in this period, a distinction between voluntary and involuntary intoxication may have had academic rather than practical significance.

    (107) As Lane LJ stated in R v Sheehan; R v Moore [1975] 1 WLR 739, 744, a ‘drunken intent is nevertheless an intent’; see also R v Bree [2008] QB 131.

    (108) The Court of Appeal reasoned that if ‘drink or drug, surreptitiously administered, causes a person to lose his self‐control and for that reason to form an intent which he would not otherwise have formed, it is consistent with the principle that the law should exculpate him because the operative fault was not his’: extracted in R v Kingston [1995] 2 AC 355, 362–3.

    (109) Evidence to this effect would have been relevant at sentencing but did not affect Kingston's liability for conviction: R v Kingston [1995] 2 AC 355, 364, 377 per Lord Mustill; see also M Redmayne Expert Evidence and Criminal Justice (Oxford: OUP, 2001) 151. In reaching this conclusion, the House of Lords declined to place any legal significance on the lack of culpability for the way in which the defendant became intoxicated, preferring to leave the significance of the absence of moral blameworthiness to be dealt with at sentencing: see G R Sullivan ‘Making Excuses’ in A P Simester and A T H Smith (eds) Harm and Culpability (Oxford: Clarendon Press, 1996) 131–5 for discussion. In Alan Norrie's analysis, this subsequent consideration of moral blameworthiness represents a re‐contextualization of the ‘juridical individual’ after the decontextualization that occurs at the point of conviction: see Norrie Crime, Reason and History 225–31.

    (110) The House of Lords cautioned that Pearson was decided ‘at a time when the law concerning the mental element of crime, and the particular place of intoxication within it, was in an early stage of development’ and concluded that ‘it would be unwise to found any principle at all’ upon it (R v Kingston [1995] 2 AC 355, 367–8 per Lord Mustill). In relation to Hale's comments on involuntary intoxication, the Kingston Court concluded that ‘legal concepts of criminal responsibility’ were ‘so different’ when Hale was writing that they could not place any ‘substantial reliance’ on the commentary for the current doctrine of intoxication (R v Kingston [1995] 2 AC 355, 368).

    (111) In Lipman, the Court stated that, for the purposes of criminal responsibility, there is ‘no reason to distinguish between the effect of drugs voluntarily taken and drunkenness voluntarily induced’: Lipman [1970] 1 QB 152, 156. The rationale for this approach is that ‘the question for the law is the same in all cases…was the awareness of the defendant relatively impaired or sufficiently impaired by a substance that he has voluntarily consumed’: Law Commission for England and Wales Intoxication and Criminal Liability (Consultation Paper No 127, 1993) para 1.11; see also Gough, ‘Intoxication and Criminal Liability’ 339; Williams Textbook of Criminal Law 418.

    (112) The category of non‐dangerous drugs has been drawn by the courts themselves (Law Commission for England and Wales Legislating the Criminal Code: Intoxication and Criminal Liability (Law Com No 229, 1995) para 1.38), again reflecting the absence of consideration of expert knowledge in the law on exculpatory intoxication. The special status of intoxication via non‐dangerous drugs has been interpreted as a ‘straight‐forward policy judgment that some kinds of drug‐taking will not be tolerated while others will’: see Norrie Crime, Reason and History 118.

    (113) R v Hardie (1985) 80 Cr App R 157. The decision in Hardie purported to follow R v Bailey [1983] 1 WLR 760, although in that case, the diabetic defendant's automatistic behaviour was assumed to be the result of failure to eat rather than the injection of insulin.

    (114) R v Hardie (1985) 80 Cr App R 157, 163.

    (115) R v Hardie (1985) 80 Cr App R 157, 162.

    (116) R v Hardie (1985) 80 Cr App R 157, 163.

    (117) R v Bailey [1983] 1 WLR 760, 765–6.

    (118) C Mitchell ‘Intoxication, Criminality and Responsibility’ (1990) 13 International Journal of Law and Psychiatry 1, 2.

    (119) As a disease, alcoholism may form a ‘disease of the mind’ as required for the defence of insanity (DPP v Beard [1920] AC 479, 501; see also R v Davis (1881) 14 Cox CC 563) or what was an ‘abnormality of mind’ as required by the 1957 version of diminished responsibility (Attorney‐General for Jersey v Holley [2005] 2 AC 580; R v Tandy [1989] 1 WLR 350).

    (120) For most of the life of the 1957 version of diminished responsibility, if an intoxicated defendant is charged with murder, he or she was able to rely on this doctrine to reduce their charge to manslaughter if they could prove that they sustained injury to the brain causing gross impairment of judgment, or that they were unable to resist the impulse to have the first drink (Tandy [1989] 1 WLR 350; R v Inseal (CA, 10 May 1991)). Recently, the Court of Appeal has moved away from this strict approach to what constitutes involuntary consumption of alcohol in the context of chronic addiction. Referring the ‘current understanding of alcoholism and alcohol dependency syndrome’, in those cases where observable brain damage has not occurred, the jury should determine a defendant's substantial impairment by reference to the effect of the alcohol consumed as a ‘direct result’ of the illness or disease: see R v Wood (Clive) [2009] 1 WLR 496; see also R v Stewart [2009] 2 Cr App R 500. It is reasonable to expect that the new formulation of diminished responsibility—around an ‘abnormality of mental functioning’—would also encompass alcoholism. On diminished responsibility, see Chapter 9.

    (121) For discussion, see J Tolmie ‘Alcoholism and Criminal Liability’ (2001) 64(5) Modern Law Review 688.

    (122) Given the large number of ‘basic intent’ offences compared to ‘specific intent’ offences, and recalling the policy concerns informing this area of criminal law, it is possible to interpret the restriction on jury consideration of the effect of intoxication to certain cases as the product of judicial mistrust of jury decision‐making in intoxication cases (see, eg, Gold ‘An Untrimmed “Beard”’ 85). There is some support for this interpretation of the law of intoxication in the case law. In Majewski [1977] AC 443, the Court expressed concern about sympathetic juries who may too readily acquit a defendant if evidence of voluntary intoxication was open to them: 475 per Lord Elywn‐Jones; for a contrasting view, see the Australian decision of the Queen v O'Connor [1980] 146 CLR 64, 79 per Barwick CJ).

    (123) DPP v Majewski [1977] AC 443; see also R v O'Connor (1994) 15 Cr App R 473. In both of these cases the defendants had consumed drugs and alcohol and, although there was no discussion on the point in the judgments, it is possible that expert evidence was admissible because the effect of combining alcohol with other drugs could not be assumed to be common knowledge.

    (124) In the Scottish case of Kennedy v HM Advocate (1944) JC 171, the High Court stated that ‘medical evidence is not necessary to establish the plea’ of intoxication: rather, ‘evidence of conduct given by laymen may be perfectly competent evidence to support the plea’ (178 per Lord Justice‐General Normand, cited in Bratty v Attorney‐General for Northern Ireland [1963] AC 386, 413 per Lord Denning).

    (125) Valverde Law's Dream of Common Knowledge 190. See also McCord ‘The English and American History’ 372.

    (126) Valverde Diseases of the Will 196.

    (127) Valverde, ‘ “Slavery from Within” ’ 258–9 and Valverde Diseases of the Will 196.

    (128) R v Lawrence [1981] 2 WLR 524, 530. There is an ambiguity in this comment between the idea of recklessness as subjective foresight of risk and recklessness as culpably indifferent attitude to risk.

    (129) Valverde Diseases of the Will 191.

    (130) Valverde refers to this as a ‘duty to know’ drunkenness—a kind of ‘imperative knowledge’ and a practice of responsibilizing private individuals: see Law's Dream of Common Knowledge 169–72.

    (131) S Fuller ‘Disciplinary Boundaries and the Rhetoric of the Social Sciences’ in E Messer‐Davidow et al (eds) Knowledge: Historical and Critical Studies in Disciplinarity (Charlottesville and London: University of Virginia Press, 1993) 126 (emphasis added).

    (132) It has been argued that the legal notion of the ‘reasonable person’ achieves a similar mix of the normative and the descriptive: see M Moran Rethinking the Reasonable Person: An Egalitarian Reconstruction of the Objective Standard (Oxford: OUP, 2003).

    (133) See further Chapter 2.

    (134) DPP v Majewski [1977] AC 443, 471 (emphasis added).

    (135) The use of a largely undifferentiated notion of an intoxicant—alcohol or any illicit drug—for criminal liability is itself part of a broader disconnection between the legal regimes regulating drug use (eg Misuse of Drugs Act 1971) and scientific knowledge of variable drug harms. It seems that it is frustration with this disconnect that has led to the creation of the Independent Scientific Committee on Drugs, comprising various medical professionals (〈http://www.drugscience.org.uk〉), and the publication of research conducted on its behalf. Some of this research rates alcohol as the most harmful of drugs, taking into account both harm to users and harm to others: see D J Nutt et al ‘Drug Harms in the UK: A Multicriteria Decision Analysis’ (2010) 376 (6 November) The Lancet 1558. These same frustrations seem to be behind a call to adapt drug policy so as to regulate so‐called ‘legal highs’: see J Birdwell et al Taking Drugs Seriously: A Demos and UK Drug Commission Report on Legal Highs (2009) available at 〈http://www.ukdpc.org.uk/index.shtml〉 (last accessed 29 September 2011).

    (136) DPP v Majewski [1977] AC 443, 487.

    (137) Lord Elwyn‐Jones stated that the defendant's conduct in voluntarily ‘reducing himself by drugs or drink’ provides ‘the evidence of mens rea, of guilty mind certainly sufficient for crimes of basic intent:’ (DPP v Majewski [1977] AC 443, 474–5). See also R v Hardie (1985) 80 Cr App R 157, 162 per Parker LJ.

    (138) United Kingdom Report of the Committee on Mentally Abnormal Offenders (Cmnd 6244, 1975) (Butler Report). The Butler Report provided that it would be an offence for ‘a person while voluntarily intoxicated to do an act (or make an omission) that would amount to a dangerous offence if it were done or made with the requisite state of mind for such offence’ (para 18.54). A ‘dangerous offence’ for this purpose was an offence of violence (assault occasioning actual bodily harm or death), sexual assault, or criminal damage so as to endanger life (para 18.55). The offence would have been one of strict liability for the offences to which it applied (para 18.57).

    (139) Law Commission for England and Wales Intoxication and Criminal Liability (Law Com No 127, 1993). According to this offence, a person would be ‘intoxicated’ when he or she had taken anything that caused his or her awareness or control to be ‘substantially impaired’. It would be immaterial that the defendant lacked the mens rea for the offence or was in a state of automatism at the time he or she performed the actus reus.

    (140) In the course of its discussion of offences against the person, the Criminal Law Revision Committee (CLRC) reported that the offence of ‘dangerous intoxication’ was an insufficiently sharp tool to label appropriately the type of defendants who might fall within the boundaries of the offence (CLRC Fourteenth Report: Offences Against the Person (Cmnd 7844, 1980) para 261).

    (141) In rejecting their own 1993 proposal in 1995, the Law Commission expressed concerns about the possibility that the offence would be perceived by defendants as less serious than the primary offence with which the defendant was charged: see Legislating the Criminal Code: Intoxication and Criminal Liability (Law Com No 229, 1995) paras 5.10–5.11.

    (142) This latter difficulty was said to open the door to expert evidence, and to be likely to add to the length and cost of trials (Law Commission for England and Wales Legislating the Criminal Code: Intoxication and Criminal Liability (Law Com No 229, 1995) para 5.11; see also F Boland ‘Intoxication and Criminal Liability’ (1996) 60 Journal of Criminal Law 100, 105). The Law Commission noted that some of those who responded to the Consultation Paper favoured an offence of criminal intoxication where it was limited to circumstances in which the intoxication caused the criminal behaviour (para 5.15). However, the Commission rejected this amendment on the basis that it would entail ‘formidable problems of proof’ (para 5.16). Thus, in its final report on intoxication, the Law Commission did not recommend the creation of a new offence of ‘criminal intoxication’ (para 5.18).