The scots law on intoxication

Q. How Could The Scots Law On Intoxication As A Defence Be Improved?

Intoxication as a defence in Scots law has been much debated over the centuries. There are many arguments supporting and denying the existence of intoxication as a defence. It seems that institutional writers and courts a like agree that voluntary intoxication should not be a “defence” in Scots law however it hasn't always been so. This essay will take a look at the history of the plea of intoxication in Scots law including its place in differing offences, responsibility of an intoxicated defender and its relationship with mens rea. In order to the fully examine improvements for such a defence it will also be necessary to understand and examine how other legal systems treat intoxication focusing on England and Australia.

Scots law has a very unsettled past evolving from intoxication acting as a defence to all charges through to the current stance that self induced intoxication is no defence in any charge especially murder. In the eighteen and early nineteenth century intoxication was looked at from the stand point of insanity. A European physician accepted by the court as an expert on the mental competence of principals or witnesses, Krafft-Ebing of Vienna was on record saying that all forms of insanity, from melancholia to imbecility, are to be found in alcoholism. The reason for this stance may refer more to the still applicable death penalty, which wasn't abolished for murder until 1965, more than a different moral or political stance on intoxication as an issue in itself. However there was a argument that intoxication brought into play the English law definition of insanity known as the M'Naghten rule. This rule was put in place as a standard test for criminal responsibility when it comes to insanity. The rule is as follows "Every man is to be presumed to be sane, and ... that to establish a defense on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was laboring under such a defect of reason, from disease of mind, and not to know the nature and quality of the act he was doing; or if he did know it, that he did not know he was doing what was wrong."

It was argued that alcohol, being a poison is essence, is a “disease of mind” and being in such a state can effect reasoning and make a person unaware of the effect of their actions which when sober would, in most cases, not do. (sort this and expand) The law on this point was clarified by the following case which not only state Scotland's stance on the M'Naghten rule but also clarifies the law on voluntary intoxication.

A key point for voluntary intoxication in Scots law was the case of Brennan v HMA. The case set the precedent that voluntary intoxication, whether by alcohol or drugs, is never capable of establishing a plea of automatism or insanity. The facts of the case concerned Ian Brennan who stabbed his father after consuming a large amount of alcohol and LSD. He lodged a special defence of insanity and contended that at the time of the murder he was insane within the definition of the law due to the alcohol, drugs or both. The judge withdraw the defence from the jury and directed that they could not return a verdict of culpable homicide. The accused was convicted of murder and subsequently appealed.

It was held in the appeal that insanity in Scots law requires a “total alienation of reason in relation to the act …… and does not comprehend the malfunctioning of the mind transitory effect, as the result of deliberate and self-induced intoxication”. They further go on to discuss the English McNaghten rule, pointing out that the English rule establishing a definition of insanity plays no part in Scots law. In is also said however that despite this differing definition in England they have reached the same conclusion.

The development of the law of intoxication has stemmed from one of the central areas of Scots law, mens rea. In Scots law for a crime to be committed there must be an actus reus and mens rea, not getting into the area of strict liability which will be discussed later. The idea, in its simplest form, is that mens rea involves a mental element and that when intoxicated this element is not present, so logically the crime was not committed. However in the modern law on intoxication this is not the case and instead recklessness is taken from the excessive drinking and continued onto the crime. This does not sit well with any other element of Scots law. For example, in a case where a battered women kills her husband. Taking this same logic we could say that she was reckless in being with him and hence she would be convicted of murder. This would end in moral out cry.

The modern express of the rule on intoxication comes from the case of Galbraith(find citation - relation to Brennan) where the court limited the scope of mental abnormality to exclude any condition brought on by consumption of drink or drugs. The case concerns a women who admits to killing her husband but claimed she was suffering from diminished responsibility. The law in this case is well summarised in the decision when it is stated that;

"In the law of Scotland a person who voluntarily and deliberately consumes known intoxicants, including drink or drugs, of whatever quantity, for their intoxicating effects, whether these effects are fully foreseen or not, cannot rely on the resulting intoxication as the foundation of a special defence of insanity at the time nor, indeed, can he plead diminished responsibility."

This exclusionary rule appears strict but has been outlined by the Scots Law Commission that there are four situations where is rule must be considered. These four situations are as follows; Addiction, mental abnormality and drunkenness, accused person in state of alcohol/drug dependency and intoxicated at the same time and final acute intoxication but no mental abnormality.

This rule is applicable to voluntary intoxication however does not apply to involuntary intoxication. The case of R v Kingston illustrates how involuntary intoxication is treated differently. The facts of the case was that D, a paedophile, was set up by a blackmailer to abuse a boy sexually, his drink was laced with soporific drug. On appeal it has decided that the idea of “transferred intent” in voluntary intoxication did not apply to involuntary intoxication. Instead the Scottish court said that involuntary intoxication is not a defence as such but states that an inability to form the requisite mens rea is capable of forming a defence. In the appeal the court stating that even though the act might have been intentional, the intent arose out of a situation that he was not to blame for. This was seen as dangerously generous and contrary to policy, it was overruled by the House of Lords. It was said that involuntary intoxication is only a defence if the accused was so drunk or drugged he does not know what he is doing. It was said by the trail judge that, “a drugged intent is still an intent”, even if the drugs were involuntarily taken.

For many the debate on the law of intoxication centres around responsibility, whether it be for their drinking or the act itself. The idea of responsibility comes in many forms from the subjective to society accountability. The idea of responsibility will not be the same for each person. The law recognises that to absolve responsibility would cause anarchy in our society however does recognise situations where people reached graduated punishment for the same offence resulting from their “responsibility”. So the question should be asked that if other things such as marital pressure, as recognised in contract law, and age of the accused can reduce the legal consequence of an act then why should alcohol not do the same thing? An example of this confusion is given by T. S. Clouston when he describes a boy with an “insane drunken mother” gets a craving for alcohol he could not control after his first whisky aged 16, which had no motive and that no punishment could deter. He states it was clear that is brain was diseased in its make up however he did come under any of the conditions the law exempts from punishment. He committed larceny and acts of violence and subsequently was sent to a gaol. Although this example is dated in its punishment it reveals a still relevant debate concerning the idea of cure Vs punishment. Should this boy not have been help and cure for this inseshable need to drink rather than put in a cell, as he would be today. Clouston says, “I counted him perfectly irresponsible, but the law did not. I contend that in such a case the law is wrong and unscientific in not taking account of facts”.

In the law of provocation a revelation of adultery is an exception to the general rule requiring proportionality between the harm done and that inflicted. This is said to be due to the hot blooded nature of adultery causing frenzy. It seems odd that this uncontrollable emotion reduces a murder case to culpable homicide yet the uncontrollable actions performed when intoxicated should not.

However as the Law Commission clearly states there is many versions of alcohol fuelled crime and perhaps for some deterrence may be more effective than cure. For example the person who choose to binge not due to any overwhelming need simply as a choice which resulted in criminal activity. In situations like this you can see of the Scots law hard line may have more of an deterrent effect by way of making them think twice before binge drinking. On the other hand is seems absurd to let a alcoholic off with a less punitive sentence because he is addicted.

There is another example that could be given for this type of problem. Take for example a man who has grown up in a alcohol fuelled environment and has been educated from a young age to look at alcohol as the means from which to enjoy life, who has never been educated or developed otherwise. Then take a father whose strong beliefs have him let his child die rather than get treated at hospital.

We would place these two example on different moral stances but in the end it comes down to individual belief. So why should the fathers sentence be mitigated by his belief where the alcoholic not be. This can be illustrated through the USA case of Kara Neumann in which an eleven year old girl died because her parents choose to pray away her diabetes rather than get it treat at a hospital. Both parents received ten months probation, with six months jail time pending appeal. However it has also appears in the England with the Nahkira Harris case. It is understood that in these cases the parents are doing what they think is best for their child but ultimately it comes down to a wrongly (or at least medically “wrong”) held belief that subsequently caused harm to another.

Consent in sexual assaults is a very consensus subject but it becomes even more complex when alcohol is involved. When it comes to the idea of intoxication many think mainly in the view of the perpetrator. In 2004 studies showed that 60% of perpetrators had been intoxicated just prior to sexual assault. However there is also an issue when it comes to intoxicated victims, although statistics on this varies dependant on the sample. An example is given by Sharon Cowan that in the student population 81% of victims of a sexual assault were intoxicated prior to the assault.

This issue has been given serious consideration in the U.K, the first surrounding the case of R v Dougal (get citation). The judge directed the jury to acquit the defendant half way through the trail due to the victims being unable to remember whether she consented or not. Although she said she would never have consented to sex she could not remember directly whether she actually did at the time, due to intoxication by alcohol. The judge in the case asserted that, “drunken consent is still consent” (find citation). In the more recent case of R v Bree (find citation) a 19 year old student had intercourse and subsequently claimed she was too drunk to consent. It was held that she was capable of consenting despite her having being sick.

Perhaps the outcome of these cases where more in line with public views than, at first sight, might have been thought. In a survey that documented public perception of rape victims almost one third believed a woman who had been drinking was partially to blame.

The main question raised in these cases was were the “capacity” for consent has been undermined or eliminated through intoxication. At what stage does a women who voluntarily gets intoxicated and comes close to the point of unconsciousness has she lost her capacity for consent.

The suggest to post a drink and sex limit similar to that of the drink and drive limit was not welcomed. The test at present is whether the accused believe the women was consent. This will be changed by …………………………

Scots law on intoxication does differ from that south of the broader. One of the most significant differences is the importance place on the subjective mens rea. In Scotland mens rea takes a much more objective stance than that south of the broader with liability for acts while drunk departing little from normal practice. English law separate their cases by recognising a difference between basic and specific intent. Intoxication as a tool for negating mens rea is only relevant for crimes with specific intent. In the House of Lords case of DPP v Majewski it was decided that self induced intoxication can only be raised as a defence in crimes of specific intent. Having outlined the separation, it raises the question of what the difference is between a specific and basic intent? In theory a crime of specific intent is where the mens rea exceeds the actus reus, showing the defendant had some ulterior motive. On the other hand basic intent is where the defendant did not have to foresee any consequence other than what is laid out in the definition of the actus reus. This is all good in theory but the distinction in practice is, at best, cloudy. The idea was rejected by the Australian court in the case of R v O'Connor with the remark that, "With great respect to those who have favoured this terminology in a classification of crime, it is to my mind not only inappropriate but it obscures more than it reveals."

This definition is not only a cloudy one in itself but also an illogical one. Surely if drunkenness can negate the mens rea of a specific intent it can do the same for a basic intent? The issue is whether or not the drunken state of the defendant means he had the required mens rea for the offence. If the accused was so intoxicated he could neither intend, foresee or know of the harm inflicted, he should surely be acquitted. However this wide and general definition would permit a highly accessible defence which would not be permitted by the courts, parliament or society a like. For this reason the English saw this as some sort of middle ground, Lord Edmund-Davies commented in Majewski:

"Illogical though the present law may be, it represents a compromise between the imposition of liability on inebriates in complete disregard of their condition (on the alleged ground that it was brought on voluntarily) and the total exculpation required by the defendant's actual state of mind at the time he committed the harm in issue."

This in itself does not appear to advocate the continued use of these definitions nor does it appear to be a better or more appealing option for Scotland. Granted the use of voluntary intoxication as more of a aggravate than a defence may be tough this “middle ground” seems to lack solid and widely applicable logic.

The English system recognises a difference between being intoxicated and simply drunk. In order for intoxication to negate mens rea, in specific intent cases, the defendant must no longer be capable of forming the necessary mens rea. This idea is shown by the case of R v Sheenan and moore when it was stated that, “a drunken intent was nevertheless an intent”. The English courts further went on the stated in the case of R v Stubbs that intoxication needed to be, “very extreme”. This however does not lead to clear cut outcomes as “very extreme” has a wide interpretation and even with mental health experts it will be difficult to deny a complete loss of control by a defender, as the onus of proof lies with the prosecution. The prosecution must prove the necessary mens rea was established beyond reasonable doubt.

Perhaps this shows that “a satisfactory common-law solution seems impossible” and the hope lies with statutory reform to improve the confusion of common law.

This leads us onto the Australian rule relating to intoxication which comes in both a codified stance and common law. In the leading Australian case of R v O'Connor Australian High Courts rejects the aforementioned distinction in English law between specific and basic intent. However they do not go as far as Scots law allowing intoxication to be taken into consideration. Under the common law rules intoxication should be taken into consideration when determining whether or not the Crown have proved beyond reasonable doubt that the accused acted voluntarily and intentionally. This idea seems to strike a good balance between, on one hand, the social needs for a person to be punished for a crime where without the use of alcohol is a very serious one. Also the moral judgement that a person should not escape punishment merely because he was so intoxicated his act was not a considered act. On the other hand this stance recognises criminal principles of responsibility which requires a criminal act to be performed voluntarily. This has not come without its dispute however. In South Australia this dispute over the current common law stance has been answered through the Criminal Law Consolidation (Intoxication) Amendment Act 1999 (SA). This statute preserves the rules of self-induced intoxication laid out in O'Connor but introduces procedural restrictions on the inclusion of intoxication evidence. The issue of intoxication can not be raised unless the judge is specifically asked to address the jury on the question of intoxication.

This common law stance was also present the Australian Capital Territory until the provisions of the Criminal Code Act 2002. This change was fuelled by the case of Nadruku where a rugby league player assaulted two women while drunk. He relied on the intoxication defence in common law and was subsequently acquitted, with the magistrate stating ‘the degree of intoxication is so overwhelming to the extent that the defendant, in my view, did not know what he did and did not form any intent as to what he was doing'. This caused moral outrage and was met with the Commonwealth Attorney-General saying, ‘[t]he use of this defence has sent a disturbing message to those who get intoxicated and engage in violent behaviour. It has given them a supposed excuse for their behaviour when there is no excuse' The new provisions state that intoxication can not be taken into consideration when deciding whether an act or omission is voluntary. Having said this self-induced intoxication can be taken into consideration to deny, ‘intent, knowledge or recklessness with respect to circumstances or consequences'. Similarly, evidence of self-induced intoxication can be taken into account in determining whether conduct was accidental and in determining whether a person had a mistaken belief of fact. The use of intoxication is only allowed for specific categories of offences such as rape (section 54 Crimes Act 1900), damage to property (section 404 Criminal Code 2002) and wounding (section 21 Crimes Act 1900). It is not however allowed in common assault.

The advantage of this over Scots law is that the fault of the defendant for being intoxicated will not itself create criminal liability, where as in Scotland it is this recklessness that is carried through to met the criteria for criminal liability. This is not a perfect approach however as it can allow drunkenness as an excuse to escape punishment, this relating in particular to the O'Connor common law rules.

It would appear that the intoxication as an all inclusive topic is a difficult one to legislate. Where there needs to be social and moral protection there also has to be acceptance of legal principles, creating a logical approach legally to a conviction.

This hard line seems incoherent with other aspects of alcohol or drug abuse. Any drunk person can legally drink himself to death, soaking up tax dollars to pay for treatment, yet suffer no added fine or punishment for the voluntary aspect. The person who dies from this abuse of substances will have no further sanctions while other forms of suicide are held to be criminal, such as assisted suicide. It also seems incoherent when placed beside a drunk mother who can dowse her unborn child in alcohol cause severe disability or addiction and legally nothing can be done. These examples are not to say that the line taken in intoxicated violence is too harsh rather the opposite that there are so many horrific outcomes for alcohol and drug abuse that perhaps need to have a tougher and clear line drawn.

To conclude the status of intoxication in the criminal law is highly debated.