.. LEGISLATING THE CRIMINAL CODE: INTOXICATION AND t CRIMINAL LIABILITY LAW COMMISSION LAW COM No 229 The Law Commission (LAW COM.No.229) Legislating the Criminal Code INTOXICATION AND CRIMINAL LIABILITY Item 5 of the Fourth Programme of Law Reform: Criminal Law Laid before Parliament by the Lord High Chancellor pursuant to section 3(2> of the Law Commissions Act 1965 Ordered by The House of Commons to be printed 7 Februa y 1995 LONDON: HMSO - E14.95 net 153 The Law Commission was set up by section 1 of the Law Commissions Act 1965 for the purpose of promoting the reform of the law. The Commissioners are: The Honourable Mr Justice Brooke, Chairman Professor Andrew Burrows Miss Diana Faber Mr Charles Harpum Mr Stephen Silber QC The Secretary of the Law Commission is Mr Michael Sayers and its offices are at Conquest House, 37-38 John Street, Theobalds Road, London, WClN 2BQ. \ -. .. 11 THE LAW COMMISSION LEGISLATING THE CRIMINAL CODE INTOXICATION AND CRIMINAL LIABILITY CONTENTS Paragraph Page PART I: INTRODUCTION 1 The subject matter of this report 1.4 2 The history of this project 1.10 3 The issues 1.14 4 The consultation process 1.22 6 The response on consultation 1.25 7 Summary of our main recommendations 1.34 10 The extent to which our recommendations would change the law 1.35 11 The advantages to be gained from implementation of our recommendations The advantages of codification in general 1.39 12 The elimination of uncertainty 1.41 13 The elimination of anomalies 1.45 14 The structure of this report 1.46 14 PART 11: SOME LEGAL TERMS AND CONCEPTS 15 Intention and purpose 2.3 15 Awareness and recklessness 2.7 17 Subjective recklessness 2.10 17 Caldwell recklessness 2.14 18 Recklessness in taking a non-dangerous intoxicant 2.17 19 Voluntary action and automatism 2.18 19 PART 111: AN OUTLINE OF THE PRESENT LAW 21 Introduction 3.2 21 The historical development of the law 3.5 22 DPP v Majewski 3.10 24 Section 8 of the Criminal Justice Act 1967 3.16 25 Offences of specific and of basic intent 3.17 26 Voluntary intoxication 3.31 30 Intoxicants taken for a medicinal purpose 3.32 31 Non-dangerous substances 3.34 32 3.37 33 How the Majewski principle applies to Caldwell recklessness.- ... 111 Paragraph Page Intoxicated mistake as a defence 3.39 33 Intoxicated mistake in statutory defences 3.42 34 Automatism 3.47 36 “Dutch courage” 3.48 36 Public Order Act 1986 3.49 37 PART IV PREVIOUS LAW REFORM AND CODIFICATION EXERCISES 38 Previous law reform exercises on Majewski The Butler Committee 4.2 38 The Criminal Law Revision Committee 4.4 39 Previous codification exercises The Criminal Code 4.5 39 The draft Criminal Law Bill published with Law Com No 218 4.6 39 PART V THE OPTIONS FOR REFORM CANVASSED IN LCCP 127 AND THE RESPONSE ON CONSULTATION 41 The options canvassed in LCCP 127 5.2 41 The provisional recommendations made in LCCP 127 5.3 42 The response on consultation Option 6: replace Majewski with a new offence 5.8 43 Option 5: abolish the Majewski principle without replacement 5.19 45 Options 3 and 4: disregard the effect of voluntary intoxication 5.30 48 Option 1: do nothing 5.33 49 Conclusion 5.47 53 PART VI: CODIFYING THE PRESENT LAW 54 Option 2(i) 6.2 54 The scope of the Majewski principle 6.4 54 Allegations of intention or purpose 6.9 56 Allegations of knowledge or belief 6.13 57 Allegations of fraud or dishonesty 6.18 59 Formulating a rule for allegations of awareness 6.22 60 Option 2(iii): voluntary intoxication a complete alternative to mens rea 6.23 60 Option 2(ii): a hypothetical test 6.28 61 Caldwell recklessness 6.35 63 Automatism 6.38 64 Automatism caused only partly by voluntary intoxication 6.40 65 Automatism caused partly by disease of the mind 6.46 66 “Dutch courage” 6.50 67 Section 8 of the Criminal Justice Act 1967 . 6.54 68 iv Paragraph Page PART VII: INTOXICATED MISTAKE AS A DEFENCE 70 Defences and definitional elements 7.2 70 Allegations of awareness 7.8 72 Allegations of intention and similar mental states 7.9 72 Statutory defences 7.16 74 Voluntary manslaughter 7.19 75 PART VIII: THE MEANING OF VOLUNTARY INTOXICATION” 77 Intoxication 8.2 77 A requirement of substantial impairment? 8.4 77 Intoxicants 8.6 78 Voluntary and involuntary intoxication 8.9 79 Unawareness of risk of intoxication 8.10 79 Intoxicants taken for medicinal purposes 8.21 82 Intoxicants administered without the defendant’s consent 8.33 85 Intoxicants taken with justification 8.34 85 The effect of involuntary intoxication 8.36 86 The burden of proof 8.37 86 PART IX: OUR RECOMMENDATIONS, AND HOW THEY WOULD WORK 88 Our recommendations 9.1 88 How our recommendations would work in practice 9.2 91 Offences requiring proof of intention 9.3 91 Offences capable of reckless commission 9.6 92 Offences requiring proof of intention or recklessness 9.12 93 Offences requiring proof of intention and recklessness 9.15 94 Offences of Caldwell recklessness 9.18 95 “Non-dangerous” drugs 9.22 96 Negligence and strict liability 9.23 96 Summary 9.26 97 APPENDIX A: Draft Criminal Law (Intoxication) Bill with explanatory notes 99 APPENDIX B: Extract from the Report of the Butler Committee on Mentally Abnormal Offenders 110 APPENDIX C: Extract from the Fourteenth Report‘of the Criminal Law Revision Committee: Offences against the Person 112 APPENDIX D: Extracts from the Draft Criminal Code. 119 V Paragraph Page APPENDIX E: Extracts from the draft Criminal Law Bill annexed to Law Corn No 218 121 APPENDIX F: List of persons and organisations who commented on Consultation Paper No 127 123 - .. vi THE LAW COMMISSION Item 5 of the Fourth Programme of Law Reform: Criminal Law LEGISLATING THE CRIMINAL CODE: INTOXICATION AND CRIMINAL LIABILITY To the Right Honourable the Lord Mackay of Clashfern, Lord High Chancellor of Great Britain PART I INTRODUCTION 1.1 In this report we address the way in which our criminal law should take account of the fact that a defendant to a criminal charge was or may have been affected by intoxication at the time he acted in the manner complained of. By “intoxication” we mean the impairment of a person’s awareness, understanding or control by the consumption of an intoxicant such as alcohol or drugs-or, as it was put in a Canadian case, the stupefied condition of a person who has imbibed alcoholic liquor in sufficient quantity to make him lose totally or partially the use of his mental or nervous faculties. .. [I] t suffices that an individual be affected by alcohol to the point of no longer having his normal control, his judgment, or, in a word, that he no longer has the use of all his intellectual or physical faculties.’ 1.2 The area of law examined in this report is a matter of enormous significance. Quite apart from the contemporary importance of crimes committed under the influence of alcohol, the subject is of “increasing practical importance, with the availability of hallucinogenic drugs whose ingestion in very small quantities can lead to behaviour which is bizarre, unpredictable and violent”.2The National Association of Probation Officers recently reported that young people suffering from addiction to drink and drugs are responsible for more than one third of household burglaries, theft and property crime.3With medical and pharmaceutical advances, there is now a greater reliance by doctors on drugs, and these may from time to time produce as side- effects unexpectedly aggressive behavi~ur.~ Desbiens ZJ R (1951) 103 Can CC 36, 41, per Bienvenue J. Kingston [1994] 3 WLR 519, 525, per Lord Mustill. The Independent, 10 August 1994. See, eg, Bailey [1983] 1 WLR 76 and Hardie [1985] 1 WLR 64. 1 1.3 Our conclusion is that the present law should be codified, with some minor modifications, and that in areas of doubt it should be clarified. This conclusion accords with our ruling philosophy that whenever possible, and particularly in the area of the criminal law, we should be aiming to make the law simpler, fairer and cheaper to use.5 The subject matter of this report 1.4 More specifically, this report is concerned with the question whether, and if so in what circumstances, a person charged with a criminal offence should escape liability if, although his state of mind is not one which would ordinarily suffice for liability, his failure to form the requisite state of mind results from a state of intoxication. It is not concerned with the quite separate question of whether he should escape liability if, although his state of mind is one which would ordinarily suffice, he would not have formed that state of mind had he not been intoxicated. 1.5 This latter question arose in the recent case of Kingston,6 where the House of Lords held (reversing the decision of the Court of Appeal) that it should be answered in the negative-even where the defendant was not at fault in becoming intoxicated in the first place. Lord Mustill, however, went on to suggest that the existing work of the Law Commission in the field of intoxication could usefully be enlarged to comprise questions of the type raised by this appeal, and to see whether by statute a merciful, realistic and intellectually sustainable solution could be newly created.’ 1.6 While we always give sympathetic consideration to suggestions as to the matters we might usefully examine (and particularly if they come from so august a source as the House of Lords), we have in this case concluded that we are unable to accept Lord Mustill’s invitation.