Sobering Up? The Law Commission on Criminal Intoxication
| Published date | 01 July 1995 |
| Author | Jeremy Horder |
| DOI | http://doi.org/10.1111/j.1468-2230.1995.tb02029.x |
| Date | 01 July 1995 |
REPORTS
Sobering
Up?
The Law Commission on Criminal
Intoxication
Jeremy Horder
*
The Law Commission has now published its final report on intoxication and
criminal liability.’ Its new proposals are a vast improvement on those originally
proposed in the initial Consultation Paper.*
In
the Consultation Paper, the Law
Commission found itself unable, as a matter of principle, to make sense of the
distinction between crimes of basic and of specific intent that has underpinned the
common law governing voluntary intoxication (more or less ambiguously) for one
hundred years or longer. At common law, intoxication is evidence that can be
employed to deny
mens
reu
in crimes of specific intent. Such evidence is, though,
inadmissible for this purpose where crimes of basic intent are in issue, even where
the
mens
reu in question involves an element of subjective awarene~s.~
I
shall
pursue this issue below.
So,
wedded to an unyielding subjectivism, the
Commission tentatively proposed to make redundant the distinction between
crimes of basic and of specific intent by allowing evidence of intoxication to be
employed wherever this tended to show that the accused lacked the requisite
(subjective element
of)
mens
reu.
Well aware, however, that such a boldly
subjectivist proposal would meet with fierce opposition, not least from the general
public, the Commission proposed that a separate offence of ‘criminal intoxication’
should be created. One would be convicted of this offence when, having become
‘deliberately intoxicated to a substantial extent,’ one caused certain listed kinds of
harms whether one was acting with
mens
reu
or not, and even
if
one was acting in a
state of aut~matism.~ This ill-conceived proposal was, to use the Commission’s
own words
(1.26),
‘rejected outright with cogent and persuasive reasons’ by
almost all influential groups working in the criminal justice system.
I
shall not
waste space by adding my own criticisms to the proposal here.
So
with what does
the Commission’s final Report replace its own initial proposals?
Finding that juries do not experience much difficulty with the present law, and
that a majority of those groups working in the criminal justice system thought the
law worked fairly and without undue difficulties
(1.28),
the Commission now
proposes to enact the present law, with certain important amendments and
clarifications. In particular, the Commission rightly pays attention to the relatively
unexplored problem of what ‘voluntary’ intoxication
-
the state
(of
mind?) that
gives rise to all the difficulties
-
really means
(1.34; 8.35).
This issue will be
*Fellow and Tutor in Law, Worcester College, Oxford.
I
should like to thank Stephen Gough
for
his detailed comments
on
an earlier draft of this article.
1
Law Com
No
229,
Legislating
the
Criminal
Code:
Intoxication
and
Criminal
Liability
(February
1995).
References
to
this Report will subsequently
be
to paragraph numbers in brackets in the text.
2
Intoxication
and
Criminal
Liability,
Consultation Paper
No
127 (1993).
3
See
eg
Aitkin
[1992]
1
WLR
1006.
4
Law Corn
No
127, op
cif
n 2, para 6.31.
534
0
The
Modern
Law Review
Limited
1995
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