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Published online by Cambridge University Press: 02 January 2018
In this article I hope to be able to demolish a number of false assumptions that are to be found in textbooks on Criminal Law. These are the assumption that intoxication (whether voluntary or involuntary) is a ‘defence’; the assumption that, when D raises in evidence that he was intoxicated, special rules come into play; and the assumption that there is a difference between the legal effect of voluntary and involuntary intoxication. Whereas these assumptions may have been justified in the nineteenth century or even a few years ago, it will be shown that recent cases have tended more and more to assimilate the rules on intoxication to the general law, so that by now the differences have virtually vanished. If this is so, it might even be possible to eliminate a chapter from future editions of Criminal Law textbooks, and to save students a very troublesome week of study.
1. This word covers not only drunkenness but also more modern forms of intoxication such as drug-taking and even (presumably) glue-sniffing.
2. See Smith and Hogan Criminal Law Ch. 9; Glanville Williams Textbook of Criminal Law Ch. 19.
3. This is not to deny that it is widespread. Thus one reads of the ‘defence’ of accident and of mistake (where D is simply denying mens rea) and the ‘defence’ of alibi (a simple denial of the actus reus). The point is not a semantic quibble; it can have practical significance especially in relation to the burden of adducing evidence - see Woolmington v DPP [1935] AC 462.
4. DPP v Beard [1920] AC 479 at 502.
5. Hale I Pleas of the Crown 32, Glanville Williams Criminal Law, The General Part (‘CLGP’) 562, and see Park J in Pearson (1835) 2 Lew CC 144.
6. Criminal Law p. 189.
7. (1748) 18 Gentleman's Magazine p. 570, (cited by Lord Denning in AG, for NI v Gallagher [1963] AC 349 at 381).
8. This is because it does not arise from one of the causes set out in s.2 of the Homicide Act 1957: see Fenton (1975) 61 Crim App R 261.
9. DPP v Beard [1920] AC 479 at 501; Di Dura (1959) 43 Crim App R 167; Davis (1881) 14 Cox CC 563.
10. English, The Guardian, 11 November 1981.
11. DPP v Beard (supra)..
12. Ruse v Read[1949] 1 KB 373.
13. Doherty (1887) 16 Cox CC 306; Meade [1909] 1 KB 895.
14. DPP v Majewski [1976] 2 All ER 142, [1976] 2 WLR 623.
15. [1976] 2 WLR at 633 [Lord Elwyn Jones LC].
16. Ibid at 637 [Lord Simon, quoting Fauteux J in R v George (1960) 128 Can CC 289, 301].
17. Ibid at 638 [Lord Simon].
18. Ibid at 655 [Lord Russell].
19. Ibid at 651.
20. [1920] AC 479.
21. Killing in the course of rape was, of course, murder under the old doctrine of constructive malice (abolished in 1957).
22. Ibid at 492.
23. Ibid at 502.
24. Ibid at 500.
25. Ibid at 504.
26. For instance defence counsel in Majewski [1976] 2 WLR 623.
27. [1909] 1 KB 895.
28. [1920] AC at 504.
29. Smith and Hogan op. cit. pp. 31–32: Glanville Williams, CLGP, p. 31.
30. General Principlcs ofcriminal Law, p. 142.
31. I am referring to the seventh edition (published 1928) but there is no reason to believe that it is any different to earlier editions on this point.
32. Anonymous (1948) YB 14 Hen VII f 14 Hil 5.
33. (1889) 23 QBD 168.
34. Ibid at 172.
35. [1875] LR 2 CCR 154.
36. S.55 of the Offences Against the Person Act 1861.
37. [1875] LR 2 CCR at 174.
38. Ibid at 176.
39. At p. 39.
40. At p. 41.
41. Some may object that this analysis contradicts the rule that ignorance of the law is no defence. There are two answers to this. One is that this principle is ignored elsewhere (e.g. in the second branch of the McNaughton Rules.) The other is that Kenny is saying that knowledge that one's act is illegal is a sufficient, but not a necessary condition for criminal liability in the cases he is dealing with.
42. At p. 42.
43. Op. cit. at p. 60.
44. [1935] AC 462.
45. Even offences of strict liability, for it is misleading to say (as some do) that these require ‘no mens rea’. (See Smith and Hogan, p.79). Some mental element must he proved and so there is a mens rea in the modern sense.
46. [1976] 2 WLR 623.
47. Ibid at p. 633.
48. Ibid at p. 655.
49. Ibid at p. 638.
50. See Gold, Logic and the Lords in Majewski [1977] Crim LR 898.
51. See, for instance, footnote 19 above (Lord Simon).
52. This of course was Kenny's argument, See above.
53. [1981] 1 All ER 961.
54. Parker [1977] 2 All ER 37.
55. Cf. Stephenson [1979] 2 All ER 1198.
56. DPP v Beard [1920] AC 479 at 502 (Lord Birkenhead).
57. See above.
58. [1920] AC 479 at 501.
59. See fn. 22 (above).
60. DPP v Majewski [1976] 2 WLR 623; Caldwell [1981] 1 All ER 961.
61. [1979] 2 All ER 1198.
* I would like to thank my colleague Dr Michacl Knight for his help in the prrparation of this article.
