legalEASE.
Intoxication - not the defence you may think it is!
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Intoxication can be a defence. But is it a good one? Arguably not as it only really works in a limited number of cases. Even calling it a defence is misleading, as it is actually a way to make the mens rea limb of the offence fail, rather than something that absolves the defendant after the offence is made out. There are two main issues with intoxication, the difference between specific and basic intent offences, and whether the intoxication was involuntary or not.
Type of offence:
Specific intent:
Offences of specific intent need an intention to commit the offence e.g murder.
Basic intent:
Here the mens rea can include recklessness e.g criminal damage.
This makes a difference because intoxication is itself seen as a reckless act which fulfils the mens rea of a basic intent offence. However, an intention to commit a specific offence may not have been formed due to intoxication.
Type of intoxication:
Voluntary:
The act of voluntarily getting intoxicated is reckless. Therefore, a defendant will never be able to argue they lacked the mens rea of a basic intent offence due to their intoxication.
For a specific intent offence, it can be used to argue there was no mens rea formed, however this is hard to prove in practice. This does not completely “save” the defendant. It often just downgrades the offence e.g murder to involuntary manslaughter.
Involuntary:
This is more useful, as it can be used for both basic and specific in the same way but only if there is a lack of mens rea, whether that be recklessness or intention.
Even if a defendant does something which he claims he would never have done sober, the defence will not apply, there truly needs to have been a total lack of awareness of the acts being done and a true involuntary intoxication.
Intoxication is therefore a very unique "defence" which depends heavily on the facts of the case.