Can I use being drunk as a defence to a criminal act?

Alcohol and the Law

Currently in the UK the problems of drinking and binge drinking are huge issues which involve a huge amount of debate. One statistic which is extremely apparent is that a large amount of criminal offences occur when an individual has been drinking. For example research has shown that 40% of offenders who have been involved in violent incidents have been drinking prior to the offence taking place.

Can I use alcohol as a defence?

Under the current law seen in England and Wales intoxication can be taken into consideration in relation to certain criminal offences but not for others.

The distinction lies in the differentiation of the offences. For example if an offence is said to require a specific intent to commit the offence such as murder then intoxication can be taken into consideration. If on the other hand the offence is said to be one of basic intent then the fact that the defendant was said to have been intoxicated is an irrelevant consideration.

How does this work in practice?

Specific Intent

  • If we look at the criminal offence of murder where the defendant has to have a specific intent to kill another individual the fact that he is intoxicated will be taken into consideration to establish whether or not the defendant possessed the required mental state to commit the crime.

  • The fact that the intoxication of the defendant will be a relevant consideration does not mean that the defence of intoxication will be able to be used every time in a case concerning specific intent. Each case will be examined on its own merits in order to establish whether the defendant possessed the required mental state.

  • This will also not be a complete defence – if it is successfully pleaded in the case of a murder it is likely that the defendant would be charged with manslaughter.

Basic Intent

  • In cases concerning basic intent it is irrelevant whether the defendant had been drinking. For example the criminal offence of battery requires the fault of the defendant to be established as either intention or subjective recklessness as to the application of unlawful force – that is the defendant foresaw of intended the possible application of unlawful force.

  • Accordingly recklessness is not defined as specific intent. This means that in order for the offence to be established it must be proven that the defendant would have foreseen the application of unlawful force if he or she had been sober. If this would have been the case then the defendant would be liable and it is irrelevant that they did not foresee this due to being intoxicated.

What is the position in relation to other jurisdictions?

Other jurisdictions have different rules as to whether alcohol can be used as a defence for criminal liability. For example in Scotland it is never allowed to be used as a defence whereas in New Zealand juries are able to consider whether alcohol altered the state of mind of a defendant for offences which require a specific state of mind.

Have there been any suggestions in relation to amendments to the law?

The Law Commission has twice issued recommendations in how to change the law in relation to intoxication, once in 1995 and again in 2009. The recommendations from the Law Commission relate to the following issues:

  • The need to specifically define the test for what is meant by specific intent and basic intent

  • The need for the law to distinguish between voluntary and involuntary intoxication

Alcohol and Sexual Offences

There have been campaigns run by the Government in relation to fully stress the point that men who have sexual intercourse with women who are intoxicated could be guilty of rape so the need to establish consent is a paramount concern. For example, a man will be guilty of rape under the Sexual Offences Act 2003 if he:

  • He intentionally penetrates the vagina, anus or mouth of another person with his penis

  • The other person does not consent to his penetration

  • The defendant does not reasonably believe that the other person consents

Issue if the victim had been drinking

Accordingly a person will be seen to have consented if they agree by choice and have the freedom of capacity to make that choice. Therefore when looking at the issue of whether an individual had the freedom of capacity for choice whether that person was intoxicated will certainly be an issue. This does not mean that every time someone has had a drink they will be deemed to have lost their capacity for choice – each case will be dealt with on its own merits. However, if an individual was incapacitated due to intoxication it can reasonably be assumed that they would not have the freedom of capacity to make that choice.

Issue if the accused had been drinking

Furthermore in order for the offence to be established it must be shown that the defendant does not reasonably believe the other to consent. If the defendant himself had been drinking he may try and argue that due to his own intoxication he believed the victim consented or he did reasonably believe that they consented. However, rape is seen as a crime involving basis intent meaning that intoxication cannot be used as a defence.