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Published : June 10, 2010 | Author : pushkarthakur
Category : Criminal law | Total Views : 16323 | Rating :

Pushkar Thakur. 3rd Year Student. W.B.N.U.J.S Kolkata,West Bengal

Intoxication as a Defence

…death is final. This finality makes it proper to regard death as the most serious harm that may be inflicted on another, and to regard a person who chooses to inflict that harm without justification or excuse as the most culpable of offenders.”[1]- Professor Ashworth

There is general agreement that causing another person's death with deliberate intent is culpable as one of the most serious offences. This reflects the high value that society puts on each individual's life and the fact that to kill someone is the most permanent of injuries.[2]

Intoxication is perceived as a state of mind in which a person loses self control and his ability to judge.[3] In order for a person escape liability under S. 85[4] of the IPC on grounds of involuntary intoxication he must be able to fulfill the following three conditions:

a) The person should be incapable of knowing the nature of the act.
b) The person should be incapable of acting and thinking in a responsible manner and in all possibility isn’t aware that his act is prohibited by the law.
c) The source of intoxication must have been given forcefully or someone should have induced the person to consume it.[5]

Section 85 essentially deals with offences committed under the influence of drugs or alcohol. Such intoxication should be caused by fraud or coercion and such intoxication should limit his ability to decide what is right and what is wrong. Section 86 deals with intoxication which is self- induced. Such intoxication which results in an offence follows the principle that one who sins when drunk be punished when he is sober.[6] For example, if a person who has consumed too much liquor, takes a knife from his house and goes with the intention to kill a person but instead kills a person who tried to pacify him, his act would amount to murder once he is sober. However, in Delirium tremens[7], a form of insanity arising out of habitual drinking which makes a person reach a degree of madness whereby he is incapable of distinguishing between right an wrong, the disease is perceived as insanity protanto and the person’s case is given the same treatment as that of a case of involuntary drunkenness.

The researcher aims to analyze the following issues to trace the nature of arguments in matters relating to intoxication:
1) Is the intoxication voluntary or involuntary?
2) If voluntary, is the crime charged one of specific ‘intent’ or ‘basic’ intent?
3) If basic intent, is the drug involved one of a dangerous (nature is it one known to create state of unpredictability or aggression)?

The research is limited to dealing with these issues which shall be backed by case studies of various Indian cases and landmark judgments which have been taken as precedents, such as Director of public prosecution v. Majewski.[8] The researcher also intends to study the various loopholes in law and why it has become a subject to criticism since the time it had been promulgated.

Chapter 1: Intoxication and Intention
In Basdev v. State of Pepsu the court said[9]:
“Motive is something which prompts a man to form an intention. Knowledge is an awareness of the consequences of the act. In many cases intention and knowledge merge into each other and mean the same thing more or less and intention cam be presumed from knowledge. The demarcating line between intention and knowledge is no doubt thin but it is not difficult to perceive that they connote different things.”

a) Intoxication as a denial of mens rea: The concept of intoxication defense under criminal law is not considered a defense either by excuse or exculpation. It is more usually considered an aggravating factor that increases the degree of social disapproval reflected in the sentence imposed by the court.

In the case of A-G for Northern Ireland v. Gallagher[10] Lord Denning stated two examples. The first related to a nurse who got so drunk at a christening ceremony that she put the baby on the fire thinking it was a log of wood. The second related to an intoxicated person who thought that his friend lying on the bed was a theatrical dummy and stabbed him to death. According to Lord Denning there would be a defence to murder in each of these cases. It was stated that drunkenness makes mistakes much more conceivable.[11] In the case of Director of Public Prosecution v. Beard[12] the accused raped and murdered a 13 year old girl and took the plea of intoxication. It was held that intoxication may only be a basis for defence if the accused was unable to form mens rea. There have been considerable developments in the field of criminal law in recent cases such as, Soolkal & another v. The State[13], where the court has asked the accused to show specific evidence that he was intoxicated and lacked mens rea. The court also stated that the burden of proof in such cases resting on the defendant will not be satisfied only by offering evidence that the accused had consumed alcohol or by a loss of memory due to intoxication.

b) Involuntary intoxication is not a defense if mens rea is present: In R v Kingston[14] it was held that involuntary intoxication is no defence to a criminal charge and is only relevant insofar as it disproves or proves mens rea. An intent produced by the surreptitious administration of drink or drugs is still a criminal intent. After the judgment of the case, involuntary intoxication is to be considered as a mitigating factor in sentencing. [15]

The only difficulty arises in the case of the mandatory life sentence for murder where involuntary intoxication cannot be taken into account at the sentencing stage. It was for this reason alone that the House had any hesitation in rejecting the creation of a new defence. In the end Lord Mustill concluded that this was not a sufficient reason to force on the theory and practice of the criminal law an exception which would otherwise be unjustified.[16]

If a drunk person causes a fatal injury to another he cannot be convicted under s.302 I.P.C as he did not have the requisite intent to kill but could still be convicted under s. 304 Part II, I.P.C., by virtue of imputed knowledge under s. 86 I.P.C.[17]

Lord Denning has said:
“When people say that a man must be taken to intend the natural consequences of his acts, they fall into error: there is no ‘must’ about it. It is only ‘may’.

c) The rule laid down in Director of Public Prosecution v. Majewski[18]: This is yet another landmark case relating to voluntary intoxication and plea of intoxication as defence. It was said in this case that evidence of self induced intoxication negates mens rea if the offence is of specific intent. In Majewski what the house was dealing with was whether the house could rely by way of defence on the fact that he had voluntarily taken drink. However other dictas have suggested that the accused is held liable without the usual mens rea because he has taken the drink and that in itself is the foundation of liability. Such an approach deems the defendant’s negligence in becoming voluntarily intoxicated his ‘prior fault’ to be sufficient mens rea for the crime. This is despite the fact that there is no contemporaneity between the fault in becoming intoxicated and commission of actus reus of the crime. There has been an alternative view in Majewski which holds that it does not create the rule of substantive law, but one of evidence. A specific intent offence is one where evidence of voluntary intoxication negativing mens rea is a defence and designation of crimes as requiring, or not requiring, specific intent is based on no principle but on policy.[19]

(c) (i) Law commission’s analysis of Majewski: The Law Commission, having surveyed the operation on the law on intoxication, considered options for reform of law on the same. The Law Commission was left with two alternatives.

First that the Majewski distinction should simply be abolished without replacement. The effect of this would be to return to established principles and to assert that that the defendant should be acquitted if he lacked the relevant mental element. The other alternative was to go ahead with the creation of a new offense which the Law commission has preferred to do.[20]

It is submitted that going ahead with the first reform is indicative of the fact that one is diluting the acknowledged policy that if a defendant causes harm while intoxicated, some criminal sanction should be imposed, if only for public safety. This might have been a reason for going for the next option.

The option of creation of a new offense has been recommended before by the Butler Committee and by a minority of the C.L.R.C.[21] The Law Commission’s preferred option for reform is to punish those who cause serious harm, while substantially and deliberately intoxicated, even though the defendant acted in a state of automatism.

Therefore a possible reason for including automatism could be that if such liability were excluded, then greater possibility of the defendant being acquitted under the defense of involuntary intoxication arises.

Thus, Law Commission’s recommendation of the creation of a new offense seems to be a preferred option as clearly an unqualified abolition of the Majewski rule without replacement by another offense is not a practicable solution.

d) Forseeability Test: The presence or absence of liability may be said to rest on a foreseeability test. The fact that the consumption of alcohol or the ingestion of drugs may cause loss of control is universal knowledge. Thus, anyone who knowingly consumes such intoxicating substances is, at the very least, committing a rash and negligent act averse to the possibility of losing control. One therefore attracts the charge of deliberate intent by consuming substances known to lead to such consequences. Moreover, loss of control may not be instantaneous and without symptoms. However, combined with the issue of involuntary consumption, the position becomes quite contentious. Even states with a strict liability offence excluding drunkenness as a defence generally require prosecution of the person who laced the drinks without the knowledge of the person who ultimately consumed it. This general rule may, however, open a Pandora's box with a convenient justification available even to such offenders who have only marginally exceeded the prescribed alcohol limit for drivers. In most legal systems, therefore, involuntary loss of control is restricted to cases where there is no real loss of control and in any case exists with noticeable symptoms. Thus, for example, many states have prescribed a low threshold for the blood alcohol level attracting the commission of an offence of driving under the influence of alcohol so that people may be liable for exceeding the prescribed limit even without the tangible symptomatic signs. More generally, this defence would be not be available to people experiencing symptoms of intoxication who continued to consume the laced drink since they are expected to be aware of the consequences. Equally, they are expected to recognize that they are affected by an unknown substance and resist from beginning an activity such as driving as this would fail to attract the defence of involuntary consumption. The basis for law in this area rests on the principle of the good of the general public as against the rights of an individual who recklessly exposes the public to danger.[22].

e) Intoxication and defences: (i) Statutory defences: In cases where the statute expressly mentions that a particular belief should be a defence to a charge the Majewski rule does not apply. In English law, the controversial Jaggard v Dickinson[23] held that, for the purposes of the statutory defence of lawful excuse, a drunken belief will found the defence even though this allows drunkenness to negate basic intent. This is limited authority and does not affect the generality of the defence. If the accused in a state of intoxication believes a thing to be his own when it is someone else’s and destroys it this belief cannot claim a defence as this would be considered an act of recklessness. However if the accused is under the impression that the thing belongs to a third person and damages the thing with the consent of the third person he is entitled to a defence[24].

(ii) Common Law defences: The common law goes contrary to statutory defence. Although it is now settled that when the accused sets up self- defence, he is to be judged on the facts as he believed them to be, whether reasonably or not and any mistake arising from voluntary intoxication cannot be relied on as a basis for defence even on charge of murder or other crime requiring specific intent as in case of O’Grady.[25] This was plainly obiter because the appellant had been acquitted of murder and was appealing against his conviction for manslaughter but in O’Connor[26] the court, inexplicably treated it as binding by quashing the conviction of murder on another ground. The dictum assumes that if self- defence is a defence to murder it must also be a defence to manslaughter, but this is not necessarily so because an act done in self defence arising from a grossly negligent mistake should be manslaughter by gross negligence.[27]

f) Intoxication induced with the intention of committing crime: The question arising here is whether a person has a defence if he voluntarily intoxicates himself with the intention to commit a crime in a state of insanity? This concept is popularly known as ‘Dutch Courage’.[28] The problem was brought to light in the case of A-G for Northern Ireland v. Gallagher[29] where the accused wanting to kill his wife bought a knife and a bottle of whisky. He got drunk on the whisky and killed his wife. He took the defence of insanity due to intoxication which had made him incapable of forming necessary intent at the time of the act. The court of criminal appeal in Northern Ireland reversed the accused conviction from murder on the ground that the judge had misdirected the jury in telling them to apply the M’ Naghten rules[30], to the accused state of mind at the time before he took the alcohol and not at the time of committing the act.

Chapter 2: Intoxication and concurrence
a) Intoxication causes automatism: The accused in a drunken state suffers concussion and commits an offence in a state of automatism resulting from the concussion. In Stripp[31], the court decided that the accused should be acquitted on grounds of automatism since intoxication was too remote from the act. The law commission held that the case suggests the possibility that where there is a course of automatism clearly separable in time or effect from the intoxication and supported by a foundation of evidence, then a defence of automatism may be available, but when causal factors are less easily separable it would seem that the presence of the intoxication will be on policy grounds lead to adoption of Majewski rule to exclude reliance on automatism.[32]

b) Insanity causes intoxication or automatism: Insanity mentioned here doesn’t apply to M’Naghten rules as here insanity relates to a particular criminal act, whereas getting drunk or causing oneself concussion is probably not a criminal act at all and certainly not concerned with the Indian Penal Code.[33]

In different times and in different societies, the response towards public drunkenness has been on a scale of diametrically opposite attitudes. While certain cultures and societies have accepted alcohol consumption or drug-taking as a part of their religious or social rites, such behaviour has attracted an entirely contrary response extending to its denigration as immoral and sinful. The norms of propriety have therefore always been dynamic and modern law has therefore appropriately steered clear of reflecting these wavering standards and criminalising intoxication per se but by adopting the more neutral standards based on whether an act arising from intoxication was voluntary or involuntary. The viability of any defence of a criminal act therefore rests on a combination of the voluntary vs. involuntary principle and the universal knowledge that consumption of intoxicants is likely to induce loss of control. The evolution of law in this area reflects a careful application of these standards.

Indian Penal Code, 1860

# Smith and Hogan, Criminal Law, (London: Butterworths, 1992).
# Ratanlal and Dhirajlal, Law of Crimes, (New Delhi: Bharat Law House, 2002).
# William Wilson, Criminal law and theory(London:Longman law series,2003)
# Michael J. Allen, Textbook on Criminal Law, (London: Blackstone Press Ltd., 1999, 5th edn.).
# A.P. Simester and G.R. Sullivan, Criminal Law: Theory and Doctrine, (Oxford: Hart Publishing, 2000).
# Stanley Yeo, Fault in Homicide, (New South Wales: The Federation Press, 1997)
# P.S.A. Pillai, Criminal Law, (New Delhi: Butterworths, 2000).
# Hugerford et al, Sourcebook on Criminal Law, (London: Cavendish Publishing Limited, 1997).
# K.D.Gaur, Criminal Law: Cases and Materials, (New Delhi: Butterworths, 1999).
# Jonathan Hening, Criminal Law, (London: Macmillan, 1998)

# Ewan Paton, “Reformulating the Intoxication Rules: The Law Commission’s Report”, [1995] Crim. L.R. 387.
# Graham Virgo, “The Law Commission Consultation Paper on Intoxication and Criminal Liability”, [1993] Crim. L.R. 420.
# Spencer, JR (1994) 'Involuntary Intoxication is a Defence' 53 Cambridge Law Journal
# Glanville Williams, “Involuntary intoxication”, (1989) 105 L.Q.R. 387.
[1] Michael J. Allen, Textbook on Criminal Law, (London: Blackstone Press Ltd., 1999, 5th edn.).
[2] Ibid.
[3] William Wilson, criminal law and theory(London,longman,2003,3rd edition)
[4] S. 85 and 86 have codified law relating to intoxication. S.85 gives an involuntarily intoxicated man the same immunity as that of a person of unsound mind under S.84
[5] Michael J. Allen, Textbook on Criminal Law, (London: Blackstone Press Ltd., 1999, 5th edn.).
[6] Qui peccat ebius luat sobrius
[7] Glanville Williams, “Involuntary intoxication ”, (1989) 105 L.Q.R. 387.
[8] [1976] 2 All ER 142 (HL)
[9] (1974) 3 SCC 490.
[10] [1961] 3 All ER 299
[11] Michael J. Allen, Textbook on Criminal Law, (London: Blackstone Press Ltd., 1999, 5th edn.).
[12] [1920] 2 All ER 479 (HL)
[13] [1999] 1 WLR 2011, PC.
[14] [1994] 3 All ER 353, HL.
[15] See, Boyland Faye, ‘Involuntary intoxication is not a defence’, at, http://webjcli.ncl.ac.uk/articles4/boland4.html. (Viewed on 19/07/2006).
[16] Spencer, JR (1994) 'Involuntary Intoxication is a Defence' 53 Cambridge Law Journal 6.
[17] Ratanlal and Dhirajlal,, The Indian Penal Code, (Nagpur: Wadhwa & co.,13th ed., 2004) pp 124.
[18] [1976] 2 All ER 142.
[19] Michael J. Allen, Textbook on Criminal Law, (London: Blackstone Press Ltd., 1999, 5th edn.).
[20] Graham Virgo, “The Law Commission Consultation Paper on Intoxication and Criminal Liability”, [1993] Crim. L.R at p.420. The first approach has been adopted by the High Court of Australia and the Court of Appeal in New Zealand. The second approach reads as follows: “The jury should be able to take into account the evidence of intoxication, together with the other circumstances, in deciding whether the defendant acted with the requisite mental element, whether intention or recklessness whether the defendant held a belief, which if true would negative liability for the offense and in deciding whether he was in a state of automatism.” ; quoted in Para 6.30, Law Commission Report, as c.f. Ewan Paton, “Reformulating the Intoxication Rules: The Law Commission’s Report”, [1995] Crim. L.R at p.382.
[21] Ewan Paton, “Reformulating the Intoxication Rules: The Law Commission’s Report”, [1995] Crim. L.R at p.387.
[22] P.S.A. Pillai, Criminal Law, (New Delhi: Butterworths, 2000).
[23] [1980] 3 All ER 399
[24] Jonathan Hening, Criminal Law, (London: Macmillan, 1998)
[25] 1985 QB 995.
[26] 1991 CLR 135.
[27] A.P. Simester and G.R. Sullivan, Criminal Law: Theory and Doctrine, (Oxford: Hart Publishing, 2000).
[28] Ibid.
[29] [1961] 3 All ER 299
[30] The M'Naghten Rules are used to establish insanity as an excuse to potential criminal liability, but the definitional criteria establish insanity in the legal and not the psychological sense.
[31] (1979) Cr. App R 318
[32] A.P. Simester and G.R. Sullivan, Criminal Law: Theory and Doctrine, (Oxford: Hart Publishing, 2000).
[33] K.D.Gaur, Criminal Law: Cases and Materials, (New Delhi: Butterworths, 1999).

Authors contact info - articles The  author can be reached at: pushkarthakur@legalserviceindia.com

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