How many of us have gone on a night out, and done something we would never do sober and then excused our actions the morning after by saying we were drunk? But what happens when our actions amount to a criminal offence? Does the same excuses hold any weight?

The answer, as set out in the case of DPP v Majewski, is that it all depends on the type of intent involved in the crime. There are two types, basic and specific. Basic intent occurs when the mens rea of an offence can be fulfilled by recklessness, whereas a specific intent offence has a higher standard of mens rea. Recklessness in a legal sense means being able to foresee that an offence is likely to occur from your actions, and still taking this risk. This risk is considered fulfilled by the act of getting drunk. However, when drunk you are considered unable to have the mental capacity for specific intent offences, meaning that intoxication can be used as a defence for these offences. Examples of specific intent offences include murder, theft and robbery, while examples of basic intent offences include manslaughter, assault, battery and criminal damage. However, while you will not be guilty of these offences, you will be considered guilty of lower offences that have the same actus reus, but have recklessness as the mens rea as opposed to intent. 

Of course, this is only looking at voluntary intoxication. The situation is slightly different in instances of involuntary intoxication, for example your drink getting spiked. Here, it can be used as a defence to basic intent offences, as there is no reckless act of getting drunk. 

Intoxication is not a defence if the intention was formed before the defendant becomes intoxicated, and this is known as the ‘Dutch Courage’ rule (Attorney General for Northern Ireland v Gallagher). This is because drunkenness cannot be used to argue that the defendant could not form the specific intent needed for the offence. 

Overall, intoxication should not be seen as a get out of jail free card. It does not serve a defence in all situations, and even when it does it is only a partial defence. 


Key Terms:

Mens Rea – The mental element of an offence, either intending the offence to happen, or foreseeing a risk the offence might occur and taking that risk anyways. 

Actus Reus – The physical element of an offence, the actual action that takes place that makes the offence occur. 

Recklessness – In a legal sense meaning being able to foresee that an offence is likely to occur from your actions, and still following through with the action. 

Specific and Basic Intent crimes – There is no universally accepted definition of specific and basic intent, however the main source of argument is from Majewski. Although each offence is categorised on a case-by-case basis, it is generally that specific intent are those crimes satisfied by intention, and basic intent are those satisfied by recklessness.

Involuntary Intoxication – A full defence to all crimes 

Voluntary Intoxication – A defence only valid in some circumstances (basic intent crimes – those satisfied by recklessness)

Leave a Reply

This site uses Akismet to reduce spam. Learn how your comment data is processed.

%d bloggers like this: