Criminal Law: Blameworthy Conduct and Intoxication Doctrine

There is a recognition that the criminal law should only punish blameworthy conduct. However, the doctrine of intoxication takes a restrictive approach in allowing defendants to prove their innocence. It is true that those who are intoxicated can be morally blameworthy due to their choice in being ‘out of control’, however, what about those who were involuntarily intoxicated? The doctrine very rarely allows for the defences to be used, questioning the ability of the criminal law to filter out those who are culpable. First, I will discuss how punishing the blameworthy uphold criminal law principles and the current doctrine. Secondly, cases, where the individual did not deserve punishment, will be explored as evidence for the law to only punish the blameworthy. Thirdly, I will look at the problems with the specific and basic intent distinction, and finally evaluate the problems with the intoxication doctrine.

Under the M'Naghten Rule, it has been conceded that ‘alcoholism affords no defence because the alcoholic probably knows right from wrong at the onset of drinking’. This is an understandable position, as even if the concept of an ‘irresistible impulse’ is added to the equation, ‘the result will not change, since the impulse under which the alcoholic labours is not an impulse to commit crime’. In other words, becoming intoxicated is not a pathway to avoid liability. The doctrine's stringent limitation on an individual's right to use the involuntary and voluntary defences prohibits the doctrine from being abused to absolve others of responsibility. Despite criticism that the doctrine is too narrow and restrictive, it exemplifies the need for criminal law to only prosecute those who are responsible; exemptions are available for those who meet the requirements. Public security arguments propose that a fundamental function of the criminal law is to ‘exert a general deterrent effect, to protect major social and individual interests’. Ensuring only those who are blameworthy in law are punished fulfils this function. However, there are underlying issues with the doctrine which raise the question of whether the criminal law can solely punish those who are culpable. By punishing those who are blameworthy, upholds the principle of legality. With a complex doctrine such as intoxication, there is a lack of understanding over defences as well as to what extent an individual is liable for an offence committed when intoxicated. This confusion highlights the need for change, and the law to recognise that the only way to uphold fairness is to clarify the law for the public. Secondly, by only punishing blameworthy conduct, the law is fulfilling the fair labelling principle by distinguishing offences reasonably. Fair labelling prevents overcriminalisation. To stigmatise every individual who committed an offence whilst intoxicated as a criminal, even though there may be mitigating factors that lessen their liability, stretches the principle of responsibility. With voluntary intoxication, 'the threshold for men's rea is much lower for intoxicated defendants than sober ones'. Rather than the requirement for the sober defendant to foresee the relevant harm, ‘it is apparently sufficient for the jury to be satisfied that a reasonable person would have done so’ in cases of intoxicated defendants. Criminalizing intoxication is problematic, and as the law stands, ‘the cause of the punishment is the drunkenness which has led to the crime, rather than the crime itself’.

The case of Kingston raises issues with involuntary intoxication, which in turn enforces the need to only punish those who are blameworthy. Involuntary intoxication has been said to be ‘exculpatory if the effect of the intoxication is to remove an actor’s normal capacity for practical reasoning'. Despite being spiked, the defendant was recognised as having the necessary intention, which raises questions of whether the case was fair. The Court of Appeal explicitly chose to change the governing rules of criminal responsibility to conclude that ‘only the blameworthy are punishable’, which led to their decision in Kingston that involuntary intoxication negates the necessary men's rea. However, the House of Lords overturned the decision. The Court of Appeal's decision was widely criticised, as a doctrinal change to allowing involuntary intoxication to negate the men's rea ‘could have cast criminal excuses adrift from their moral counterparts’, which in turn could have created a ‘generalised excuse of criminal liability’. The decision made by the House of Lords was highly objective, failing to understand the context surrounding the situation. Hart's fair opportunity theory proposed that blame is only ascribed if an individual has a ‘fair opportunity’ to ‘adjust his behaviour to the law’. This principle was ignored, and a narrower interpretation of the doctrine was taken, highlighting the need for the law to broaden its interpretation and focus more on the state of the defendant at the time rather than just the act committed. This would allow for a more just system of punishing culpable individuals. Lord Taylor CJ stated ‘a man is not responsible for a condition produced ’by stratagem or the fraud of another’. The offender deserves to be punished for the factors within their control, not outcomes which happened by chance. Therefore, in Kingston, even if he committed gross misconduct, it has no moral significance if he was involuntarily intoxicated beforehand. Blameworthy conduct must be the sole driving force for punishment because it can lead to unjust outcomes. However, one must balance the protection of the public with the offender's liability; Kingston had committed offences in the past which the courts utilised as an underlying factor in his conviction. The case highlights a ‘shift from individual responsibility for each offence’ to holding an individual liable based on their ‘character’, where defendants are judged by previous convictions. However, with respect to Kingston, it has been conceded that even for ‘stigmatic offences it is not possible to exempt all blameless persons whilst remaining within the doctrinal parameters of the law’. To allow intoxicated individuals to be acquitted of criminal offences poses a danger of decriminalisation, however, to convict blameless individuals is unjust, so the law must find a balance and reform the doctrine.

However, the distinction between basic intent and specific intent is blurred, which raises practical issues with defining blameworthy conduct. It has been claimed that this distinction is ‘ill-defined’, which in turn questions the reliability of the intoxication doctrine in practice. Labelling intoxicated individuals as reckless ‘rests on fiction’, with Lord Elwyn Jones' argument in DPP v Majewski creating confusion between the term ‘reckless’ and the foresight of risks whilst intoxicated. Lord Elwyn Jones stated ‘getting drunk is a reckless course of conduct’, which is difficult to understand, as drinking is a common social practice and in only 39% of violent incidents the victim believed the perpetrator to be under the influence of alcohol. To claim all individuals who get drunk as reckless is a haste generalisation and a stereotype which cannot define blameworthy conduct. Furthermore, it has been held that the intoxication rules are inconsistent with Section 8 of the Criminal Justice Act 1967. This act requires courts to look at ‘all the evidence when deciding whether the defendant intended or foresaw a result’. However, under DPP v Majewski, all evidence of intoxication is denied unless the crime is of specific intent, and Section 8 only relates to ‘legally relevant evidence'. This means that the courts do not have a holistic picture of the case because evidence regarding the individual's state during the offence is ignored if it is one of basic intent. Under the Law Commission Report, they actioned for an abolishment of the basic and specific intent distinction. Additionally, the Commission mentioned codifying the law to make it more accessible and easier to clarify uncertain terms. However, the Government rejected these proposals, perhaps due to them being ‘unnecessarily complex’, which is what the Home Office defined as the Draft Criminal Law Bill. The stagnation in changing the law is over-criminalising individuals who may not be as blameworthy as others. However, despite the doctrine having significant setbacks, a change could be costly in terms of how intoxication is perceived as an offence. The Law Commission initially proposed abolishment of the Majewski rules, due to the ‘absence of satisfactory criteria’ in determining the distinction between specific and basic intent crimes. Additionally, they noted that by abolishing these rules, ‘D’s intoxication would be considered when determining whether they had the state of mind required for liability'. Despite this view, the Commission decided to discard this proposal due to the limited support and sensitivity over how practical it would be; with respondents highlighting that ‘the police would have to devote more time to enquiries’. Therefore, changes may lead to a greater proportion of individuals escaping liability, rather than effectively punishing those who are blameworthy.

Additionally, hardly any decision has held that the defendant was involuntarily intoxicated which poses problems with the involuntary intoxication defence. The defence is ‘simply and completely non-existent, which is dangerous in the sense that ‘it is hazardous to generalise an enormous body of law as that on crimes committed by inebraites’. Courts tend to avoid using the involuntary intoxication defence, which may be because ‘the rules are neither clear in practice nor readily explicable in theory’. In the case of Kingston, despite the argument being made that the case highlights the need to only punish the blameworthy, if there are underlying faults within the intoxication doctrine, how can the law only punish blameworthy conduct? However, to create a new defence, and agree with the Court of Appeal's decision in Kingston would be controversial. Such a defence has been stated to ‘apply to all offences', and ‘lead to an acquittal, unlike provocation or diminished responsibility’. The Law Commission noted that a complete defence would be easy to manufacture, as the accused would only need minimal evidence to prove that they were acting out of character. This prospect undermines the law and allows for people who are liable to avoid punishment. Therefore, the position that the involuntary intoxication defence should be widened and enforced would provide more opportunities for individuals to pave their way out of being culpable for their actions.

The decision made in R v Taj exemplifies the problem of the intoxication rules being ‘drawn too widely’, resulting in inappropriate punishment of some defendants. Within Taj, the court made the decision to expand the definition of ‘intoxication to ’capture effects ‘immediately’ and ‘proximately’ to drunk or drug-taking'. This has been noted as problematic due to the lack of boundaries to ‘specify where proximate begins or ends’, as well as the wrong punishments being allocated to defendants with ‘complex clinical profiles’ such as acute intoxication. Instead of punishing blameworthy individuals, the decision risks criminalising acts ‘attributable to mental disorders’. Furthermore, the criminal law tends to take a ‘narrow focus’ regarding the intoxication rules, ‘analysing and blaming a defendant’s conduct and mental state in a snapshot moment in time'. This restricted approach raises questions as to whether the criminal law would be able to exclusively punish blameworthy conduct because the mechanisms behind judgments do not allow for an in-depth and holistic examination of the case.

The purpose of the criminal law is to protect the public, however by criminalizing intoxication, the public's regard for the law is compromised. The law criminalises intoxication subconsciously, and the rules in the doctrine are unclear and difficult to understand. To reform the doctrine comes with risks, with the danger of decriminalizing intoxication in its entirety. However, the Law Commission's multiple proposals to reverse the illogical law at present and codify the law to provide clarity are enough to conclude that the law must change, and only blameworthy conduct should be punished. Reform will be controversial, and opposed by some, however, the doctrine must be reconstructed, not only to punish the blameworthy but to uphold justice in the legal system.

Bibliography

1. Clements LM, ‘After R v. Kingston: Is There Scope for a New Defence of Involuntary Intoxication' (1995) 59 J Crim L 305
2. Crombag H S, Child JJ and Sullivan GR, ‘Drunk, dangerous and delusional: how legal concept-creep risks overcriminalisation’ (Society for the Study of Addiction, 2020) 115(2) 2200
3. Epstein T, 'A Sociolegal Examination of Intoxication and the Criminal Law' (1978) 7 Contemp Drug Probs 401
4. Hall J, 'Intoxication and Criminal Responsibility' (1944) 57 Harv L Rev 1045
5. Office for National Statistics, ‘The nature of violent crime in England and Wales: year ending March 2018’ (2019)