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

Research from the Office for National Statistics reveals that 47% of violent crimes carried out in England and Wales are committed while the offender was under the influence of alcohol. Although someone who is drunk could claim that they lacked the necessary mens rea in committing the crime, this will not therefore, as a matter of public policy, usually be allowed as a defence.

However, in England and Wales intoxication can be taken into consideration if the offence committed required an element of specific intent, as opposed to basic intent (DPP v Majewski (1977)).

Specific intent

A crime of specific intent is generally one that requires the defendant to intend some unlawful consequence specifically identified in the offence. For example:

  • wounding or grievous bodily harm with intent to cause GBH or resist arrest under s 18 of the Offences Against the Person Act 1861 (R v Brown and Stratton (1997));
  • murder, which requires the intention to unlawfully cause either death or serious injury, (R v Lipman (1970)).

Intoxication can be used to negate the mens rea in crimes of specific intent, but rarely acts as complete defence – usually a lesser charge of basic intent will be made out instead (eg, manslaughter instead murder).

Just because the defendant was drunk, this will not always excuse him, even where a crime of specific intent has been committed. A drunken intent is still intent. Drunkenness can only arise as a defence if a man is so completely drunk that he does not form any intention at all (R v O’Hare (1999)).

Each case will be examined on its own merits to establish whether the defendant possessed the required mental state.

Basic intent

In cases concerning basic intent it is irrelevant whether the defendant had been voluntarily drinking. A defendant’s conduct in reducing himself to that condition supplies the evidence of mens rea sufficient for crimes of basic intent (Majewski). In general terms, any crime that contains ‘recklessness’ in the offence will be one of basic intent (R v Caldwell (1982).
Offences which have been classed as crimes of basic intent include:

  • Assault, battery, ABH and s 20 GBH (Majewski);
  • Sexual assault (R v Heard (2007));
  • Rape (R v Woods (1982));
  • Taking a conveyance without consent (R v MacPherson (1973));
  • Allowing a dangerous dog to be unmuzzled in public (DPP v Kellet (1994)).

Alcohol and sexual offences

Men who have sexual intercourse with an intoxicated person could be guilty of rape if the victim is so drunk that they are incapable of giving consent. A man is guilty of rape under s 1 of the Sexual Offences Act 2003 if:

  • he intentionally penetrates the vagina, anus or mouth of another person with his penis;
  • the person does not consent to the penetration; and
  • the defendant does not reasonably believe that the other person consents.

Issue if the victim had been drinking

When looking at whether an individual consented to sex, whether they were 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

If the defendant had been drinking, he may try and argue that due to his own intoxication he reasonably believed the victim consented. However, rape is seen as a crime involving basis intent, meaning intoxication cannot be used as a defence.

Suggested amendments to the law

The Law Commission has twice issued recommendations for changing 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.
Article written by...
Nicola Laver LLB
Nicola Laver LLB

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A non-practising solicitor, Nicola is also a fully qualified journalist. For the past 20 years, she has worked as a legal journalist, editor and author.