Intoxication in English law is a circumstance which may alter the capacity of a defendant to form mens rea

Mens rea

Mens rea is Latin for "guilty mind". In criminal law, it is viewed as one of the necessary elements of a crime. The standard common law test of criminal liability is usually expressed in the Latin phrase, actus non facit reum nisi mens sit rea, which means "the act does not make a person guilty...

, where a charge is one of specific intent, or may entirely negate mens rea where the intoxication is involuntary. The fact that a defendant is intoxicated in the commission of a crime — whether voluntarily or not — has never been regarded as a full defence to criminal proceedings (unlike statutory defences such as self defence

Self-defence in English law

Self-defence is part of private defence, the doctrine in English law that one can act to prevent injury to oneself or others or to prevent crime more generally – one has the same right to act to protect others as to protect oneself. This defence arises both from common law and the Criminal Law Act...

). Its development at common law

Common law

Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...

 has been shaped by the acceptance that intoxicated individuals do not think or act as rationally as they would otherwise, but also by a public policy necessity to punish individuals who commit crimes.

Voluntary intoxication

"If a man of his own volition takes a substance which causes him to cast off the restraints of reason and conscience, no wrong is done to him by holding him answerable criminally for any injury he may do while in that condition."

Lord Elwyn-Jones, in DPP v Majewski DPP v Majewski DPP v Majewski [1976] is a leading English criminal law case, establishing that voluntary intoxication is no defence to crimes requiring only basic intent, the mens rea requirement for these being satisfied by the reckless behavior of intoxicating oneself.... [1976] 2 WLR 623

Where an individual voluntarily intoxicates himself, it is not a defence for him to then claim he does not intend any actions he commits while intoxicated. However, it has been recognised at common law that those who would not intend to commit a crime if sober cannot be held to the same level of culpability as those who would. Thus, the approach of the courts is generally to find intoxicated individuals guilty of crimes which require basic intent, rather than the specific intent — such as malice aforethought — required for other crimes. While this approach has faced criticism from some authors, it has been branded as a more ethical and fair approach to intoxicated individuals. In DPP v Majewski, Lord Edmund-Davies approved of the view taken by prominent academic lawyers, quoting that:

"While a policy of not allowing a man to escape the consequence of his voluntary drunkenness is understandable, it is submitted that the principle that a man should not be held liable for an act over which he has no control is more important and should prevail."

However, the way in which this position is upheld puts the law of intoxication at odds with traditional views on mens rea. While intoxication negates the mens rea for criminal damage with intent, it prima facie proves the mens rea of recklessness required for ordinary criminal damage. The mens rea requirement seems to be satisfied simply by the reckless behaviour of an individual in getting into an intoxicated state, rather than forming the requisite mens rea for any particular offence. It has been suggested that the behaviour the law should seek to criminalize is the reckless intoxication, and not to infer mens rea for an offence simply due to a reckless course of conduct in becoming intoxicated.

Specific and basic intent

The distinction between crimes of specific and basic intent is demonstrated by the intoxication case of R v Lipman

R v Lipman

R v Lipman [1970] 1 QB 152 is an English criminal law case establishing that voluntary intoxication, however extreme, can not be a defense to manslaughter...

. Here, a man who had voluntarily taken LSD

LSD

Lysergic acid diethylamide, abbreviated LSD or LSD-25, also known as lysergide and colloquially as acid, is a semisynthetic psychedelic drug of the ergoline family, well known for its psychological effects which can include altered thinking processes, closed and open eye visuals, synaesthesia, an...

 struck and asphyxiated a woman — who was also involved in taking LSD — while hallucinating, believing her to be a snake. The man was found to lack the specific intent required of murder

Murder in English law

Murder is an offence under the common law of England and Wales. It is considered the most serious form of homicide, in which one person kills another either intending to cause death or intending to cause serious injury .-Actus reus:The definition of the actus reus Murder is an offence under the...

, but satisfied the basic intention of manslaughter

Manslaughter in English law

In the English law of homicide, manslaughter is a less serious offence than murder, the differential being between levels of fault based on the mens rea . In England and Wales, the usual practice is to prefer a charge of murder, with the judge or defence able to introduce manslaughter as an option...

, that of recklessness. While it has been argued that there is no consistent principle behind the distinction, there has been some judicial effort to suggest a means of categorisation. Lord Elwyn-Jones believed that if a crime could be committed recklessly, it was one of basic intent, and while it has been submitted this principle is likely sound, it is suggested that the case law be used to accurately outline the mens rea requirement of specific crimes.

The intent necessary to commit individual crimes.

Criminal offence	Intent required	Notes
Murder Murder in English law Murder is an offence under the common law of England and Wales. It is considered the most serious form of homicide, in which one person kills another either intending to cause death or intending to cause serious injury .-Actus reus:The definition of the actus reus Murder is an offence under the...	Specific intent
Grievous bodily harm with intent	Specific intent
Theft/Robbery Theft Act 1968 The Theft Act 1968 is an Act of the Parliament of the United Kingdom. It creates a number of offences against property in England and Wales.On 15 January 2007 the Fraud Act 2006 came into force, redefining most of the offences of deception.-History:...	Specific intent
Burglary with intent to steal Theft Act 1968 The Theft Act 1968 is an Act of the Parliament of the United Kingdom. It creates a number of offences against property in England and Wales.On 15 January 2007 the Fraud Act 2006 came into force, redefining most of the offences of deception.-History:...	Specific intent
Criminal damage within s1(1) or s1(2) of the Criminal Damage Act 1971	Specific intent
Manslaughter Manslaughter in English law In the English law of homicide, manslaughter is a less serious offence than murder, the differential being between levels of fault based on the mens rea . In England and Wales, the usual practice is to prefer a charge of murder, with the judge or defence able to introduce manslaughter as an option...	Basic intent
Rape Sexual Offences Act 2003 The Sexual Offences Act 2003 is an Act of the Parliament of the United Kingdom of Great Britain and Northern Ireland that was passed in 2003 and became law on 1 May 2004.It replaced older sexual offences laws with more specific and explicit wording...	Basic intent
Grievous bodily harm	Basic intent
Kidnapping/False imprisonment	Basic intent
Assault occasioning actual bodily harm	Basic intent
Common assault	Basic intent
Reckless criminal damage	Basic intent

Dutch courage

While generally an intoxicated individual cannot form specific intent to perform a crime, an exception to this rule is provided by the case of A-G for Northern Ireland v Gallagher. Here, Lord Denning stated the principle that if an individual forms an intention to commit a crime, and then intoxicates himself, the mens rea of his actions is not diminished to basic intent:

Involuntary intoxication

Unlike cases where a defendant has intoxicated himself voluntarily, the courts have taken a far more lenient view of defendants who become intoxicated through no fault of their own. Involuntary intoxication is not necessarily a full defence to criminal charges, as there are several qualifications to what can be called 'involuntary', some of which have met criticism and calls for reform. Nevertheless, a defendant who successfully argues involuntary intoxication will not be held culpable for actions they carried out while intoxicated. The first qualification to this is that a defendant cannot claim they are involuntarily intoxicated simply because they were misinformed or wrong about the alcohol content of what they were drinking. Thus in R v Allen a man who committed indecent assault and buggery was convicted, with his argument rejected that he did not realise the wine he was drinking was strongly alcoholic. A second limitation imposed by the courts is that the defendant must have been exceptionally intoxicated in order to argue he had no mens rea to commit a crime. In effect, this means that – as was originally stated a century ago in R v Beard – it is no defence that one loses his inhibitions due to involuntary intoxication, and goes on to commit a crime. A recent example of this principle can be found in R v Kingston, where an individual, after having his drinks spiked by his co-defendant, committed indecent assault on a boy aged 15. It was found that the defendant had merely given way to his paedophilic intentions, and not lacked a mens rea to commit the acts altogether: the fact he was involuntarily intoxicated went only to mitigate sentencing.