More than any other area of criminal law, intoxication demonstrates the clash between principle and policy. It is a fundamental principle of criminal law that liability should follow fault and that a person is only at fault if their behaviour is voluntary (actus reus) and the product of rational thought (mens rea). Strict adherence to this principle would acquit defendants who committed crimes whilst intoxicated if this impaired their ability to think and reason. However, as official statistics demonstrate that a vast amount of crime, particularly that involving violence, is committed whilst the defendant is intoxicated, there are clearly strong policy reasons to reject the strict application of principle as this would allow intoxicated defendants to avoid criminal liability. Such an approach would do nothing to protect the public from the intoxicated behaviour of others and would be contrary to the maintenance of law and order. The polarisation of principle and policy finds expression by way of a distinction made between voluntary and involuntary intoxication on the basis that the latter involves no fault on the part of the defendant. Voluntary intoxication, however, involves fault as a defendant has reduced himself to a state where he is less able to exercise rational and conscious control over his behaviour. Viewed in this light, it does not seem unreasonable to treat the situations differently. The delineation between voluntary and involuntary intoxication has sometimes proved problematic for the courts. Voluntary intoxication includes all situations in which a defendant has knowingly ingested alcohol or recreational drugs but also extends to situations whereby a defendant erroneously believes he has consumed only low-alcohol drinks (Allen  Crim LR 698). Conversely, a person who knowingly takes prescription drugs will not fall within voluntary intoxication even if the drugs were not prescribed for him or he takes them in excessive quantities. For example, in Hardie  3 All ER 848, the defendant took a quantity of anti-depressants prescribed for his girlfriend and, whilst under their influence, set fire to her flat. The Court of Appeal quashed his conviction on the basis that taking drugs with a well-known sedative effect should not be treated in the same way as alcohol and drugs known to cause unpredictable or aggressive behaviour thus should be treated as involuntary intoxication. A defendant will also fall within involuntary intoxication if he has been ‘spiked’ with alcohol or drugs without his knowledge. However, involuntary intoxication will only allow the defendant to avoid liability if the intoxication precludes him from forming the mens rea for the offence. In Kingston (1994) 99 Cr App R 286, the defendant was drugged without his knowledge or consent and, whilst under the influence of intoxicants, committed an act of indecency with a young boy. His conviction was restored by the House of Lords on the basis that he formed the mens rea of the offence notwithstanding his intoxicated state and the fact that the intoxication was non-volitional did not alter that position. Irrespective of the seeming inequity of the outcome, Kingston exemplifies the principled application of the law with regards involuntary intoxication; if the defendant is capable of forming mens rea, he will be liable even though he had become intoxicated through no fault of his own. If, however, an involuntarily intoxicated defendant is incapable of forming mens rea, he will not be liable even if he only acted as he did because of the effects of the intoxicant. Here, the law is reflecting a principled approach that refuses to find liability in the absence of fault. Whilst involuntary intoxication represents the primacy of principle, the law on voluntary intoxication is policy-driven. A voluntarily intoxicated defendant will not be able to rely upon this to avoid liability; in fact, his intoxication will actually provide the mens rea of certain crimes. This derives from the House of Lords decision in Majewski  AC 443 in which a defendant was not permitted to rely on voluntary intoxication to avoid liability for assaulting a police officer in the execution of his duty. The House of Lords held that voluntary intoxication operated differently in respect of crimes of specific and basic intent. A crime of specific intent is one which can only be committed intentionally where recklessness forms no part of the mens rea such as murder. In such cases, a defendant who is so intoxicated that he is incapable of forming mens rea will not be liable but a defendant who is capable of forming mens rea despite his intoxication will be liable: ‘drunken intent is still intent’ (Sheehan (1974) 60 Cr App R 308). This coincides with the principle approach evident in relation to involuntary intoxication. However, the House of Lords reserved the policy-driven ambit of the law to crimes of basic intent: those involving recklessness. Here, a defendant will not be able to argue that his intoxication prevented the formation of mens rea. Moreover, the fact of intoxication will provide the mens rea needed to establish criminal liability on the basis that rendering oneself into a state of intoxication is a reckless act. This conclusion is directly contrary to the principle that a defendant must satisfy both actus reus and mens rea in order to be liable as prior recklessness in becoming intoxicated is not the same as the specific recklessness required for any particular offence thus demonstrates the triumph of policy over principle. These cases demonstrate the paradox that characterises intoxication. Principle determines the outcome in relation to voluntary intoxication for crimes of specific intent and all offences involving involuntary intoxication whilst policy prevails in relation to crimes of basic intent involving voluntary intoxication. Accordingly, intoxication operates to acquit in relation to certain offences whilst it operates to convict in relation to others. It seems reasonable to state that not only is this an unhappy compromise between the need to maintain law and order and the need to identify fault before applying criminal sanction, it also epitomises a legal system that cannot decide which of these is to take priority. Word Count: 1000 words .
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