Essay Plan: "In what circumstances does the law allow a defendant’s intoxication to be relevant to criminal liability? Is the current law satisfactory?"

Essay Plan: "In what circumstances does the law allow a defendant’s intoxication to be relevant to criminal liability? Is the current law satisfactory?"

Introduction

• Focus: Introduction to how intoxication is treated in criminal law, specifically addressing its relevance to criminal liability.

• Thesis: This essay will explore the circumstances under which intoxication is relevant to criminal liability and evaluate whether the current legal framework is satisfactory.

Paragraph 1: Specific Intent and Basic Intent Crimes

• Specific vs. Basic Intent:

◦ Specific Intent: Crimes requiring proof of a specific intent (e.g., murder, theft). Intoxication may negate the mens rea.

◦ Basic Intent: Crimes requiring only recklessness (e.g., assault). Intoxication is generally not a defence.

• Key Cases:

◦ DPP v Majewski (1977): Established that voluntary intoxication is not a defence for basic intent crimes.

◦ R v O'Connor (1991): Intoxication substituted for manslaughter, illustrating confusion.

◦ Involuntary Intoxication: The confusion in applying the specific/basic intent distinction to cases of involuntary intoxication.

• Critique:

◦ Not Satisfactory: The distinction between specific and basic intent is problematic, especially in cases of involuntary intoxication.

◦ R v Allen (1988) and R v Pearson (1992): Highlight difficulties in applying the distinction.

◦ R v Kingston (1994): Held that a defendant can still be liable if they form the necessary mens rea, even when involuntarily intoxicated.

◦ R v Taj (2018): Post-intoxication conduct and its relevance to mens rea.

• Academic Perspective:

◦ Simester's Critique: Argues the law is overly complex and inconsistent.

Paragraph 2: Sexual Offences and Intoxication

◦ Key Cases:

▪ R v Bree (2007): Held that capacity to consent could be lost due to intoxication, but the threshold is high.

▪ R v Hysa (2007): Contrasts with Bree by allowing more flexibility in assessing consent under intoxication.

◦ Grid System: The attempt to categorise levels of intoxication and consent, leading to an unsatisfactory legal state.

• Critique:

◦ Recklessness in Consent: The law’s approach to intoxication in sexual offences risks conflating recklessness with genuine consent.

◦ Kessler's Argument: Distinguishes between "assent" and "consent," arguing that intoxication challenges this distinction.

◦ Unsatisfactory: The law leaves too much ambiguity, and there is little that can be done to resolve these issues under the current framework.

Paragraph 3: Indirect Intention and Intoxication

• Indirect Intention:

◦ Key Cases:

▪ R v Moloney (1985): Established that foresight of consequences does not equate to intention.

▪ R v Nedrick (1986) and R v Woollin (1998): Shift towards finding intention where there is virtual certainty of the consequence.

• Intoxication’s Role:

◦ Problematic Understanding: The issue lies not with intoxication itself but with how the law understands and applies the concept of intoxication in relation to mens rea.

◦ Justice David Souter's Perspective: Suggests that the law’s treatment of intoxication needs to be reconsidered in light of how it affects mental states.

• Critique:

◦ Not Satisfactory: The law’s approach to indirect intention and intoxication remains convoluted, leading to inconsistent applications and outcomes.

Conclusion

• Summary: The law allows intoxication to be relevant to criminal liability primarily in cases involving specific intent, sexual offences, and indirect intention. However, the distinctions and applications are fraught with confusion and inconsistency.

• Final Argument: The current legal framework is not satisfactory. It requires reform to address the complexities and inconsistencies that arise when intoxication intersects with criminal liability.