Criminal Law- Intoxication and Defences

Intoxication can be easily confused from defences. By pleading that the D was intoxicated is not a defence to a crime, it is saying that they did not have the Mens Rea to commit the offence. Defences are not disputing the MR of an offence, they have providing an excuse for committing a crime with all of the AR and MR present, for example Duress. 



Intoxication is split into 2 categories, Voluntary intoxication and involuntary intoxication. The rule when dealing with either intoxication is that if they D had the MR, then they will be found to have the required MR. Intoxication can only disregard the Mens Rea of an offence if the intoxication made the D have no mental element to commit the crime.

Involuntary intoxication is fairly simple and quick to deal with. If the involuntary intoxication was so potent that it deprived the D of the  MR of the offence, then they will not be guilty of the  offence. However if the D had the MR then they will be guilty of the offence. for example, in the case of R v Kingston, a man was spiked by colleagues knowing that he had tendencies to have sexual contact with young boys. They put him in a room with a young boy who was also drugged. Even though D was involuntary intoxicated and wouldn’t have gone forward with the sexual assault otherwise, he was found guilty because he still had the required MR.

Voluntary intoxication is slightly more complex, however the same principle applies; if the D has the required MR regardless of their intoxication, they will be guilty of an offence. The leading case authority for Voluntary intoxication is R v Majewski. From this case it was taken that crimes of specific intent, if intoxication applies, then the crime will be mitigated to one of basic intent. By crimes of specific intent, we mean crimes which have the requirement of intention and not recklessness. Basic intent crimes can require recklessness or intent. However this does mean that for some crimes, such as Theft, which is a specific intent crime, there is no basic intent crime for theft, and therefore the D will face no charge. whereas for a crime like GBH with intent section 18 OATP , it can be mitigated to GBH section 20 OATP. The recklessness of the MR of the crime will be substituted with the recklessness of getting to intoxicated.

The case of R v Heard, although a very confusing case with reference to ulterior intent in regards to intoxication, however one principle did come out of the case. It stated that All sexual offences are that of basic intent, and therefore voluntary intoxication shall not be used to mitigate the offence. However involuntary intoxication may still be used.

The Dutch Courage (the act of becoming intoxicated in order to give courage to perform an act)  proved to be a problem because it means that the AR and the MR had no coincidence. Foe example, if the D thought they wanted to kill their wife. Then they got so intoxicated that they could not form any judgement and therefore had no MR at the time where he actually killed his wife, there would be no coincidence of MR and AR and therefore technically under the general principles would be mitigated to unlawful act manslaughter. The case of AG for Northern Ireland v Gallagher stated that having the MR before the intoxication was enough as there was still the MR which he went in to perform the act and therefore they should be punished.

Mistake is a relatively common occurrence with intoxication cases due to the nature of the act. In the case of R v Gladstone Williams, a man was convicted ABH section 47 OATP when witnessing a man attacking a boy and intervened, when in actual fact the boy had just stolen from the man. The mistake did not matter as it was a crime of basic intent and he was convicted. Equally in the case of R v O’Grady he punched his friend, unaware it was his friend and was still convicted. In the case of R v Lipman, a man killed his wife when intoxicated on LSD. He though it was a monster, however it was his wife that he was strangling. The charge was mitigated to Unlawful Act Manslaughter.

The case of R v Allan showed that if D got the strength of the intoxicant wrong and didn’t intent to get so intoxicated, it will not matter, and the court will still find a conviction.

In the case of Jaggard v Dickinson, a criminal damage case, where the D broke into a house that they though was their friends, but was a neighbour’s instead. The D tried to rely on the defence 5.2 of the criminal damage act that they believed that their friend would fully consent to them breaking into their house, and it was by intoxication that they made the mistake. The court held that intoxication would not work with the defence of 5.2 and they were convicted.



Duress is a full defence to many crimes. Generally duress is where a person it forced to commit a crime because of a threat to their or another’s life. The leading case for this is R v Graham, where it sets out the criteria for Duress:

  1. the reasonable belief from the D that either they or someone else would be seriously injured or killed.
  2. Someone of the same character, sex age and circumstance would have acted the same.

If both of theses factors are satisfied then duress will be satisfied and the D will have a full defence. The D has an evidential burden, meaning they they have to put evidence in that they were subject to duress and then the prosecution will have to disprove it beyond all reasonable doubt.

There are certain rules that are set out in other cases:

R v Hudson and Taylor– the threat must be imminent

R v Sharp– it can not be used if you are in association with criminals/a criminal act. Already in a robbery and a member wants to back out, and by duress are forced to keep finish the robbery in which someone gets killed. They were convicted of murder.

R v Howe– Defence not available for attempted murder.

R v Gotts– Defence not available for murder.



Necessity is a defence that is rarely used, and when it is it is rarely successful. It is where someone has done something in order There are three elements which needs to be proven for the defence of necessity to work:

  1. The act is needed to avoid an inevitable and irreparable consequence.
  2. The minimum is done in order to achieve the desired outcome, but no more.
  3. It must be proportionate, so the consequence that is avoided, must be worse than the outcome.

An example of this would be the case of Re A, which has been talked about previously, where conjoined twins must be separated in order to save one of the twins lives. However as a result, the other would die. It was necessary for them to be separated otherwise both of them would have died.


Self defence/ Defence of property/ Prevention of crime

All three of these defences are closely connected, due tot he elements of prevention of crime. Self defence if prevention of crime as it prevents an assault on yourself, and prevention of property damage is preventing criminal damage. They are all held under the Criminal law act section 3. The criminal damage act covers the prevention of damage to property and the Criminal justice and Immigration Act hold some of the legal principles.

For the prevention of destruction of property, the defences are held in section 5 of the Criminal damage act under the heading ‘lawful excuse’.

For the self defence and prevention of crime, reasonable force must be used in order for it to work, which has a subjective element and an objective element of it.

The subjective element is that D believes that the force that they used was reasonable for the circumstances that they were in. The Criminal justice and immigration act sets out the test in full:

If D claims to have held a particular belief as regards the existence of any circumstance—

  1. the reasonableness or otherwise of that belief is relevant to the question whether D genuinely held it; but
  2. if it is determined that D did genuinely hold it, D is entitled to rely on it for the purposes of subsection (3), whether or not—
  3. it was mistaken, or
  4. (if it was mistaken) the mistake was a reasonable one to have made.

Which was used in the cases of R v Beckford and R v Gladstone Williams.

Section 76.7 provides further guidance stating that a person acting for a legitimate purpose may not be able to weigh to a nicety the exact measure of any necessary action, and evidence of someone having only done what the person honestly and instinctively thought was necessary for a legitimate purpose constitutes strong evidence that only reasonable action was taken by that person for that purpose.

The objective element is deciding what was the reasonable amount of force used in order to prevent the crime or defend themselves in that situation, which was found in the case of R v Martain.

There is no duty to retreat in order to rely on self defence, this means that in a situation where a defendant used self defence, they do not have to allow the other party to attempt or actually commit the crime or harm the defendant to make an presumptive move in order to stop them. R v Bird.

In cases where the defendant provoked another, and then the D acted in self defence, then they can only rely on the defence if the actions of the provoked were out of proportion. R v Keane

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