First published in 4 Trinity College Law Review (2001), 119
1 The English Law
2 DPP v Majewski
3 Identification of a Crime of Basic Intent
4 Classification of Crimes
5 The Law in Germany
6 German Principles of Liability
7 The Wessels Diagram
8 Focus on the Act of Intoxication
9 The Internal Act
In a legal system that has evolved beyond holding a person absolutely responsible for their actions, the position of the voluntarily intoxicated offender causes difficult and complex problems. When a system recognises that something more than a physical act is required to attract the sanction of the criminal law it will generally look to the mind of the accused in order to decide whether the act is punishable. Intoxication poses particular problems because it can result in an inability of the accused to form such a state of mind, which would allow the accused to escape punishment, when this person commits what would otherwise be a crime. It is undisputed that the intoxicated offender causes harm to others. Society, as interpreted through the courts, demands protection against such harm. Therefore, while the demand for a mental element may seem to lean in favour of the intoxicated offender, since intoxication will impair such a mental element, practical and utilitarian concerns lean the other way. Otherwise, the criminal justice system would be seen to be failing in the eyes of the public if it were to let an intoxicated offender go free, while punishing a sober one. 1
In attempting to deal with this problem, support has often been voiced for the provision of an offence of dangerous intoxication, 2 like that which has found favour within §323a of the German penal code. Given that neither the Irish courts 3 nor legislature have yet comprehensively considered the position of the intoxicated offender the ultimate aim of this paper is to query whether enactment of a special offence similar to the German model in preference to approval of the Majewski principle is a desirable step. 4
This article will attempt to argue that despite provision of such an offence, the approach of the German system to the problem of the intoxicated offender is, in the ultimate analysis, very similar to the English approach found in Majewski. 5 Essentially, despite the apparent wide embrace of the §323a offence, it will not punish offenders for all crimes committed while intoxicated, and liability will only be imposed in both jurisdictions for acts of an identical character, those which may be classed as acts of low sophistication. 6
The English Law
The common law in a discrete area often owes a great deal to its history, and this is certainly true of the intoxication rules. The current complexity and internal illogic of Majewski should not really come as a surprise when one considers the vast historical variants of the law in this area. 7 Early ecclesiastical law that rejected the defence of drunkenness 8 was followed in spirit throughout the period prior to the nineteenth century where the criminal law developed along the lines of retribution and punishment. 9 Perhaps reflecting Aristotelian influences, 10 intoxication was itself seen as a blameworthy exercise, tending to aggravate rather than excuse an offence. 11 While early nineteenth century judicial decisions gradually eroded the severity of the rule that voluntary intoxication was never a defence to a crime, 12 it was not until 1920 and the case of DPP v. Beard 13 that the modern law regarding intoxication and crime began to find form. In that case Lord Birkenhead said:
“Where a specific intent is an essential element in the offence, evidence of a state of drunkenness rendering the accused incapable of forming such an intent should be taken into consideration in order to determine whether he had in fact formed the intent necessary to constitute the particular crime. If he was so drunk that he was incapable of forming the intent required he could not be convicted of a crime which was committed only if the intent was proved. 14”
Despite widespread controversy as to its exact meaning, the decision was taken to distinguish between offences of specific intent and those of basic intent. 15 Where a charge of an offence of specific intent was laid, evidence of intoxication could be adduced to defeat that intention. However, in the case of basic intent crimes, intoxication evidence would not be admissible.
DPP v Majewski
The defendant in Majewski 16 had been charged with three counts of assault occasioning actual bodily harm and three counts of assaulting a police officer. 17 His defence was that he had taken a large amount of drugs and alcohol and so did not know what he was doing and had no intention to attack anyone. The House of Lords answered the following question in the affirmative:
“Whether a defendant may properly be convicted of assault notwithstanding that by reason of his self induced intoxication he did not intend to do the act alleged to constitute the assault. 18”
The House also discussed the wider question of the effect of voluntary intoxication on criminal responsibility and liability.
It is clear that Majewski is a policy-orientated ruling. It is arguably based on two primary notions. The first of these is that the law should protect society against the violence of intoxicated persons. As Lord Simon of Glaisdale said:
“One of the prime purposes of the criminal law, with its penal sanctions, is the protection from certain proscribed conduct of persons who are pursuing their lawful lives. Unprovoked violence has, from time immemorial, been a significant part of such proscribed conduct. To accede to the argument on behalf of the appellant would leave the citizen legally unprotected from unprovoked violence where such violence was the consequence of drink or drugs having obliterated the capacity of the perpetrator to know what he was doing or what were its consequences.” 19
The second notion is that it is morally just to hold such intoxicated persons responsible for criminal behaviour, as they chose to become intoxicated themselves. In this regard Lord Elwyn Jones LC had the support of the House in saying:
“If a man of his own volition takes a substance which causes him to cast off the restraints of reason and conscience, no wrong is done to him by holding him answerable criminally for any injury he may do while in that condition. His course of conduct in reducing himself by drugs or drink to that condition in my view supplies the evidence of mens rea, of guilty mind certainly sufficient for crimes of basic intent. It is a reckless course of conduct and recklessness is enough to constitute the necessary mens rea in assault cases”. 20
The policy reasons thus being clear, one must turn to examine the legal tools used to achieve these goals. This, of course, is the distinction between specific and basic intent offences. That is to say, for liability to attach to an intoxicated offender he must be guilty of a basic intent offence. The question which then arises is the exact definition of a crime of basic intent. The response of the English system here is obviously vital to the ultimate aim of this paper, as one must be able to discern the type of behaviour that will attract liability. It will be shown that, although there is no agreed determinant for classification of a basic intent crime, 21 through the case law a general pattern has emerged which illustrates the type of acts which will attract liability, thereby allowing comparison with the German law.
Identification of a Crime of Basic Intent
In the Australian case of R v. O’Connor Barwick CJ remarked:
“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.” 22
This obfuscation arises from the difficulty in providing a reasonable rationale for the distinction. 23 At least three different reasons for such a categorisation present themselves. On the basis of the Lord Chancellor’s speech in Majewski one could say that basic intent crimes are those whose definition expresses a mens rea which does not go beyond the actus reus. 24 This has been speculatively interpreted as classifying specific intent offences as crimes where a certain consequence must be intended as foreseen, but without providing that this intended or foreseen consequence should actually occur. 25 Basic intent crimes would therefore be those which themselves refer to no consequence. Therefore murder would be a crime of basic intent. However, “[e]veryone agrees that murder and wounding with intent are crimes of specific intent”. 26
Secondly, one could argue that basic intent equates to recklessness and that specific intent refers to intention. This was taken to be the thrust of Lord Elwyn Jones LC’s judgment in Majewski in the later case of R v. Caldwell, 27 to the effect that Majewski is “[a]uthority that self induced intoxication is no defence to a crime in which recklessness is enough to constitute the necessary mens rea“. 28 On this basis a basic intent crime is one that can be committed recklessly.
Thirdly, the UK Law Revision Committee has suggested that crimes of basic intent require only intention or awareness in respect of the physical act of the crime and not the consequence of the initial act. 29 Aside from criticism of each option, the existence of three possible tools for categorisation is prima facie evidence that there is no agreed definition of what makes up a basic intent offence, and thus, what actually constitutes the rule in Majewski. Therefore one is in no position to say for certain what type of behaviour will attract criminal liability. The only option one has therefore is to examine the actual cases in order to find out what has been held to be a basic intent crime. This is attempted in the table below.
Classification of Crimes
All offences including an element deceit or fraud34
Criminal Damage, where only an intention to endanger life is involved36
Allowing a dog which is required to be, but is not, muzzled and leashed in a public place37
Indecent Assault where an indecent purpose must be established38
Criminal Damage where recklessness to endanger life is relied upon39
Wounding with intent42
Causing GBH with intent44
Kidnapping and False imprisonment45
Burglary with intent to steal46
Indecent Assault where the act is itself undisputedly indecent47
Handling Stolen Goods48
It is evident that the specific intent crimes involve intents which may loosely be described as more sophisticated than those in the basic intent category. Fraud and robbery, for example, demand a level of thought and sophistication that one would not normally attribute to a drunken person. However, crimes such as assault can be viewed objectively as requiring a lower level of capacity given that the act itself is a crude one. It appears therefore that basic intent crimes have been classified as those offences which, although not requiring a sophisticated intent, require intent nonetheless. It shall be argued later that this intent is proved by direct reference to the act itself. Essentially, a basic intent crime is a crude crime, one with an unsophisticated mental element that is inherent and implied in the commission of the act itself.
The rule in Majewski thus approves the Beard 49 distinction between offences of specific and basic intent. This then becomes the vehicle for conviction of the intoxicated offender, in that an intoxicated offender can be convicted of an act of basic intent. This will be vital when one turns to consider the German law where liability, it will be argued, hinges upon exactly the same type of act.
The Law in Germany
The German solution is to be found in §323a (formerly §330a) of the German Criminal Code, the Strafgesetzbuch. 50 This provision was adopted in 1933. However to merely state the section will not suffice, rather it must be placed in the overall setting of the German criminal law system. Despite its codification, the approach to the problem of intoxicated offenders has been far from straightforward. Indeed the same problems that plague the English solution are very much active in the German legal order, namely those of reconciling principle with policy. The observations of Heinitz neatly capture this point:
“In general it must be agreed that § 330a StGB has caused exceptional difficulties in the administration of justice and will cause more in the future. I do not believe, however that this is caused by the lack of development of the statutory provision. I hold the contrary opinion, that the introduction of §330a StGB has signified a decisive step forward. The difficulties lie in the subject itself.” 51
The text of §323a (1) is as follows:
“A person who deliberately or carelessly gets himself into a state of acute intoxication through alcoholic drinks or other intoxicating substances shall be sentenced to imprisonment of up to five years or a fine if, in the state of intoxication he commits an act contrary to law and cannot be condemned therefore because he was, as a result of the state of acute intoxication, not capable of legal guilt or because this lack of capacity cannot be excluded.” 52
The second subparagraph 53 provides that in no case can the sentence be more severe than the sentence which otherwise would have been imposed. The procedural aspects relating to the intoxicated offence are the same as would apply if the act were committed while sober. This much is clear from the third subparagraph. 54 The section is intrinsically tied to another section of the StGB, §20, which provides:
“A person conducts himself without legal guilt who at the time of committing the act alleged was incapable of appreciating that his act was unlawful or was incapable of conducting himself in accordance with such appreciation on account of either a mental malfunctioning due to disease, a deep-seated malfunctioning of consciousness, imbecility or any other severe mental degeneration.”
This section contains a part description of Schuldfähigkeit, 55 or legal guilt. It is at once noticeable that the German approach contains an attempt to reconcile two overreaching demands of the principle of individual liability. Essentially it is admitting that under general criminal principles intoxicated offenders cannot be held liable for their actions, thus the perceived need for a special offence. The effect of intoxication, on occasion, will bring the offender under §20 as a person who conducts himself without legal guilt. Arguably therefore the crime committed while intoxicated is not punishable per se, but rather the intoxication act itself is the blameworthy exercise. 56
Before turning to look at the effect of §323a in practice some attempt should be made to understand the relevant legal institutions that will have a direct bearing on its operation.
German Principles of Liability
An accused will only come within §323a where legal guilt is lacking, where there is no Schuld. 57 However, the tempting direct analogy between Schuld and mens rea should be resisted as a specific meaning is attributed to the concept of Schuld in the German legal order. As the Federal Court of Justice (Bundesgerichtshof, or BGH), Germany’s highest court in criminal and civil matters, has held:
“Punishment has as a prerequisite Schuld. Schuld is blameworthiness. With the decision as to the unjustifiable nature of the Schuld, the accused is adjudged, that he has conducted himself in a manner contrary to law, that he has decided for the unlawful, although he had been able to conduct himself lawfully and to decide for the lawful course.” 58
Building on this, the Federal Constitutional Court (Bundesverfassungsgericht, or BVerfG) stated:
“Such a condemnation within the criminal law requires blameworthiness, and therefore requires Schuld. Otherwise the punishment would be one with a justification which cannot be reconciled with the constitutional legal principles as it would be for a past even for which the person concerned had no responsibility.” 59
Evident from this is a loose parallel between the objective and subjective elements of actus reus and mens rea, and the objective unlawfulness and subjective Schuld. Interrelationships between the German concepts, however, make it dangerous to label of Schuld as being exclusively subjective. 60 Indeed the German construction of liability is a threefold exercise. Despite this the main principle remains that there can be no punishment without Schuld. 61
The best illustration of this three tier approach, each aspect of which must be established, is arguably based on Professor Wessels’ original plan in Strafrecht Allgemeiner Teil. 62
It is possible therefore to analyse §323a in the light of general criminal law principles. It is clear that the section involves four separate facts that must be established. First, the accused must have deliberately or carelessly got himself into a state of acute intoxication. Secondly, this must be the result of consumption of alcohol or other intoxicants. 63 Thirdly, while in this state he must commit an act contrary to law and finally, that as a result of this state of intoxication he must lack legal guilt for the act, i.e. that §20 is in operation.
The Wessels Diagram
Daly draws a useful distinction here, stating that the first two acts relate to the ‘intoxication act’ while the latter two to the ‘internal act’. 64 It is clear then that §323a must fit properly into the general principles of liability. The intoxication act includes the requisite behaviour as demanded by Wessels’ diagram (the getting himself intoxicated) with a set of elements to be proved (through intoxicants). The mental element could be said to exist in the narrow sense of unlawfulness and also in the deliberateness or carelessness. However the main and possibly fatal weakness of this plan is that the unlawfulness is concentrated solely upon the act of intoxication. Theoretically, the intoxication act is unlawful. Can it actually be said the consumption of alcohol is unlawful per se? 65
The internal act does not seem to withstand the same analysis either. The concept of legal guilt is explicitly removed from consideration. Unlawfulness exists, but no Schuld. It has been stated that the intoxication act is “a roof without a foundation” and the internal act a “foundation without a roof”. 66 In attempting to overcome these difficulties German courts have been faced with three possibilities, two distinct and one that is a combination of the other two. Essentially, a court can focus on the intoxication act alone, the internal act alone, or a combination of both. Concentration on the internal act alone has never being pursued, arguably because of its explicit exclusion of the Schuld requirements. An approach favouring a combination of the intoxication act with the internal act, has found favour but, as Daly states, without lasting judicial approval. 67 What remains then is a concentration of the principles of liability on the intoxication act, which of course, raises the criticisms outlined above.
Focus on the Act of Intoxication
In an attempted answer to the criticism that the §323a offence failed to provide the requisite unlawfulness, the Bundesgerichtshof 68 resolved that §323a (then §330a) should be viewed as indicating the danger of the intoxicated person, with the Schuld itself being found in the “blameworthiness of the intoxication”. Arguably responding to widespread criticism, 69 the court later restated its position as follows:
“[T]he blameworthy self-intoxication is in no way of neutral value and inconsiderable from the criminal law’s point of view. It contains, on the contrary, quite independent from the internal act, self-contained unlawfulness that is within the bounds of the criminal law.” 70
This seems very similar to the Lord Chancellor’s approach in Majewski. 71 Although it has been questioned whether ‘reckless’ was what was actually intended by the Lords, 72 the Lord Chancellor arguably focuses the moral justification for punishment on the act of intoxication alone. He reasons that the intoxication act itself is reckless conduct, and therefore what the German legal order would call unlawful. Arguably the similarity here is that both legal systems acknowledge that, in the vacuum of principles of liability, the intoxicated offender cannot be convicted. Therefore, given that the intoxicated offender must be punished, some other way has to be found. Focusing on an aspect of the intoxication that is in no way illegal, and arguably not even reckless, 73 is an admission that some attempt is being made to hammer out principles of liability to attach to circumstances where, realistically, they do not belong.
It is arguable that this approach is consistent with §323a. As has been already stated, Schuld is removed from the internal act. If one then concentrates the Schuld on the intoxication act, the internal act has been said to be capable of being treated as an “objective condition of liability” as required in Wessels’ scheme. The proponents of this argument also recognise its weaknesses. 74 The second and third subparagraphs give to the internal act an important role in sentencing and procedural matters. Indeed, this approach has met with similar academic treatment in Germany as in England, with some accepting that the policy grounds justify what could be termed a legal fiction. Others however, much like when considering the Majewski distinction, criticise the reasoning as flawed and illogical. 75
In any event the unreality of this situation is obvious. Upon achieving a state of acute intoxication one is performing a criminal act, the punishment of which depends on the further commission of an illegal act. As previously mentioned, Ireland has rejected the use of such a ‘criminal in waiting’ logic. That such lengths will be resorted to, to achieve what is considered to be a right result at the price of sacrificing logic, highlights the unique nature of this area of law. Indeed it is remindful of Lord Salmon’s remark in Majewski to the effect that “[a]bsolute logic, in human affairs, is an uncertain guide.” 76
The Internal Act
Despite the apparent rejection by the German courts of the need for a subjective connection in the mind of the accused between the intoxication act and the internal act, it is beyond doubt that there is an objective connection. The lack of legal capacity that is required in §323a must result from an intoxicated state brought about by the intoxication act. As such it has been shown that the tendency of the courts has been to treat the internal act as “an objective condition of liability to be punished”. But §323a uses the phrase “if he commits an act contrary to law” which is defined in §11 (1) 5 StGB as “[o]nly such an act which brings into effect the state of affairs described as criminal by a provision of the criminal law”.
On first glance this seems to suggest that despite intoxication, the internal act must be established in the same way as would any other criminal act. As the German system requires both voluntariness and capacity for criminal punishment, 77 both must be established if the charge is to be made out. At once one can see the apparent circularity of the concept. It is because of the failure of the German Criminal system to allow for punishment of intoxicated offenders’ actual crimes that this special offence exists. That is why Schuld is excluded from the internal act. Otherwise it would be a dead letter. Despite the exclusion of Schuld, the general §11 (1) 5 principle requires that certain subjective elements must still be proven. 78
These subjective elements must then, if Schuld is taken away, be considered as elements of the offence under section A(b) of Wessels’ table. This is particularly evident where a German penal provision stipulates a particular state of mind to be established as part of the offence. This is loosely analogous to the concept of intent in the English system. 79 The court must satisfy itself that such intent exists, arguably having the effect of making certain offences difficult to make out as internal offences except where intent can be clearly established. Where the accused was intoxicated at the time the offence was committed it will be incredibly difficult to establish intent. Indeed this is the very reason for the Majewski distinction – that intent, a requisite to liability in many offences, is impossible to establish because, arguably, it does not exist in the normal sense when in a state of intoxication. Therefore Majewski goes above those principles to achieve a result that protects society from unprovoked violence.
Arguably in both jurisdictions, what the specific and basic intent distinction reflects is the concept that some acts are of such a low level of what might be termed ‘sophisticated intent’ that the mental element may be presumed as part of the external element. Thus, acts which can be said to be probative of a mental element are capable of constituting the internal act.
The specific problem outlined above only tends to occur where the offence has a certain state of mind set out as a requisite for punishment, and that state of mind is called “intent” in the English system. The situation must now be addressed for offences without such a requisite. §15 StGB provides that only deliberate conduct is punishable, unless a statutory exception exists in the offence which allows that it be conducted through carelessness. Thus, it has been argued that deliberateness forming part of the subjective unlawful elements of the crime must be established to some extent before the internal act is made out. 80 Once again the fact that there is no Schuld involved would tend to show that the degree of deliberateness which is typically part of the Schuld is less than would be normally required. Thus German Law envisages that some degree of mental responsibility for the conduct forming the internal act must be established against the accused, despite his lack of Schuld. 81
To solve this problem the German Courts have had recourse to the concept of natürlicher Wille or ‘natural will’. While attempts at defining this nebulous concept have been described as vague, 82 it would appear to embody the notion that a man, despite being acutely intoxicated, will act in many cases under certain self-guidance towards a proximate goal. It therefore holds that despite a state of unconsciousness that would attract the attention of §20 StGB, an offender still behaves with a degree of capacity that is sufficient for punishment. Exact definition and identification of the concept is difficult, much as would be of the natural law. Similar to the natural law, it seems to be a result orientated device. 83 It is clear that the German courts recognise the same social concerns as the House of Lords in their acknowledgment that the risk of unprovoked violence must be reduced. The concept of the natural will, by allowing conviction of intoxicated offenders, facilitates this.
Its operation can be viewed in the following example. The Oberlandesgericht Hamm had before it a case where in an attempted suicide the accused took a massive amount of LSD reducing him to a the position described in §20 StGB. He then drove a car, resulting in an accident causing injury to other parties. Despite holding that only a voluntary act would suffice as opposed to a reflex motion or action, and that the accused lacked capacity, 84 the court found that the accused had exhibited signs of voluntariness. 85
On the basis of this, one could conjecture that a natural will to do an act will be presumed or attributed to an intoxicated offender whenever he acts with an objectively viewable purpose. For example, viewed objectively, an acutely intoxicated person hailing a taxi seems to be acting towards a goal. This goal would be one that would appear objectively similar were he sober. The presumption would seem to be that if a person can move himself towards such a goal, and also if he is incapacitated per §20, then something else must be causing the act: natural will.
This examination tends to be borne out when one considers offences which require a degree of deliberate course of behaviour. In these cases the natural will must be in the shape of a natürlicher Vorsatz or natural deliberateness. 86 This in turn must be directed towards the basic ingredients of the offence charged. Obviously this will require knowledge of certain facts, if such knowledge is required by the offence, such as in the example given by Daly of the offence of sexual abuse of a child under 14. The natural will must exist in relation to the fact that the child was under 14. Clearly this will be a difficult task, as one is essentially attributing a natürlicher Vorsatz to a specific intent. In the offence of rape it has been held that the naütrlicher Vorsatz existed where the accused, while in a §20 state, used violence to force a woman to have intercourse with him and so was held to have his natürlicher Vorsatz focused on the lack of consent.
The similarity with the specific/basic intent distinction begs consideration. As already argued in the context of the internal act, there are some acts which are easier to say could not be committed when lacking capacity in the objective sense. Against this, certain acts are considered more likely to have been intended when committed in a state of intoxication. This in turn will theoretically depend on the complexity of the offence. That rape, which is arguably a specific intent offence, is treated as an easier act to commit when intoxicated in both jurisdictions, i.e. a basic intent offence in Britain and in Germany where the natürlicher Vorsatz can almost be presumed, speaks volumes for the similar aims of behaviour control. Indeed Majewski has traces of what could be termed a natural will approach. Lord Elwyn-Jones LC, approving of what was said in R v. Morgan, stated that “with a crime of basic intent the mens rea does not extend beyond the act and its consequence, however remote as defined in the actus reus“. 87
Essentially, one half of the justification for punishment, the existence of mens rea, 88 is said to also exist in the other half – that of the actus reus. Like in the taxi example, the external elements, or objectively viewable acts, are treated as manifestations of the direction of the mind to achieve some task, and that is enough. The actus reus provides evidence of the mens rea. This potentially goes further than the natural will approach. With the latter the tribunal of fact is required to investigate the existence of a natural will, and in its absence there is no crime. In essence the charge of natural will is rebuttable. The Majewski parallel to the natural will approach is not rebuttable. The offender in Majewski-governed situations will find his crime classified as either a basic intent or a specific intent offence. If it is the former the defence of intoxication is unavailable to him. If it is the latter the fact that he was intoxicated may secure him an acquittal. Where the offence is one of basic intent, the offender, despite acute intoxication and an inability to form intent, will be presumed to have been capable of a basic intent and convicted. No investigation into his actual capacity is made. 89 Indeed it has been argued that taken to its logical conclusion the Majewski approach would allow conviction for assault against an intoxicated person for an “involuntary swagger”ù. 90 Whether a court would go this far is questionable, but nonetheless it is the potential of Majewski to allow it.
In fact the similarity goes further. As has been argued in this article, Majewski has a twofold approach to liability. First, the intoxication act itself is deemed to supply the mental element required in basic intent offences, because it is a reckless course of conduct. 91 Secondly the physical act has been described as probative of the mental element. 92 The first of these has been argued as substituting intoxication for criminal intent and cannot, on that basis be a stand alone reason for imposition of liability. 93 It does, however, stress that the intoxication act itself is viewed suspiciously by the court. It itself is “a reckless course of conduct”. 94 But despite the Lord Chancellor’s apparent approval of focusing the mental element on the intoxication act, which takes place prior to the actual criminal act, he further stipulates that the mental element can be established by reference to the external act, i.e. the criminal act. At one level it looks like there are two competing tests. According to one, if you drink and commit a crime, the intention to drink is probative of the mental element of the crime, only where that mental element is recklessness. The other says that the mental element for the criminal act can actually be established from the external act itself.
It is submitted that one cannot ignore one test in favour of the other. However, when they are viewed in conjunction, the similarity with the entire German approach is clear. German courts focus unlawfulness and blameworthiness on the act of intoxication. Against this, recognising that the principals of individual criminal liability are pulling in the other direction, a loose mental element is required for the actual act itself, which is proved via the natural will which itself is only used against those acts that it can plausibly attach to. Essentially it is a recognition that the system wants to protect against these offenders in a blanket sense, but because it cannot, it attempts to punish those that come closest to its embrace. These of course are those offenders to whom it is easiest to attribute a natural will. This then builds upon the general distaste towards the intoxication act itself, and conviction is secured.
The English system does exactly the same. The Lord Chancellor’s ‘recklessness’ approach has not found approval as the sole determinant of liability. 95 Something else is required. Thus appears the use of the actus reus as probative of mens rea, but only in cases where it can plausibly be said to be so probative. It is arguable that no one will have a natural will to defraud. Neither can the actus reus of fraud be plausibly said to be probative of its mens rea.
Both systems are using a ‘building block’ approach. The systems, in order to punish the intoxicated offender, attempt to come as close to conventional approaches as possible. Simply declaring the fact of intoxication as justification for punishment will not do. However, combining a focus on the morality of one’s actions onto the intoxication act, by describing it as reckless or blameworthy, with a model that will seek out those acts that are easy to attribute a drunken intention to, both systems attempt to approximate their established conventions of liability.
It may be observed then that the tools used to secure convictions, the natural will model and the intent model, will generally result in conviction for similar acts. What are termed specific intent crimes, such as fraud or deceit, will be consistently outside their embrace. As regards intent, it would take some very rare and very strong evidence to establish an intoxicated intent to commit fraud. The natural will concept will likewise not attach to the ulterior intent required by the offence. The obvious difference is that German law will actually convict a person for being drunk and causing harm, whereas the English approach would just convict for the criminal act. Therefore it can be argued that the §323a conviction will be based upon the same type of acts that the English system will convict. 96 Essentially, punishment in both systems will be contingent upon similar acts done while intoxicated. These of course, are acts of basic intent.
In both jurisdictions the punishment of the voluntarily intoxicated offender is found in a two-fold focus on his acts. Majewski and §323a lay emphasis on the initial act of intoxication as providing evidence of the internal element required as a requisite to liability. Furthermore, both systems, almost admitting the problem of focusing an unlawful state of mind on a lawful act, require a looser sense of mental element to be established in relation to the internal act. Germany uses the natural will concept, whereas in England certain acts are presumed to be of such a character that the actus reus will be probative of the mens rea.
Both of these tools or methods will arguably result in focusing liability on the same sort of acts. These acts are those that are of a less sophisticated nature than acts that require some degree of ulterior or further contemplation, as it is implausible to attribute a mental state sufficient for complicated acts to an intoxicated offender. As has been argued, the primary difference between the two at this stage is that acts punishable in Germany are not written in stone. Rather in each case it must be asked, did this offender have a natural will? Obviously, it will be easier to answer in the affirmative when the acts are of a less sophisticated character. In England however, certain acts are de facto probative of this looser mental element.
Such a broad similarity should perhaps not be surprising, given that each jurisdiction is faced with a similar question within a broadly analogous criminal justice system requiring something over and above a simple physical act to attract liability. The observation of Heinitz, that the difficulties lie in the subject itself seems to have been borne out.
It is submitted that, despite the broad similarity, the German approach is preferable. When dealing with intoxicated offenders, the courts can be said to be already treading on thin ice. An approach that presumes a mental state, based on an inconsistent and unworkable categorisation has more potential for unjust convictions than one that where the court must inquire as to the actual capacity of the particular offender.
The obvious question is therefore, does this distinction justify enactment of a special offence along the lines of the German model? This would assume that, if a blanket defence of intoxication should not be permitted, the choice is a stark one between Majewski and §323a. A court obviously cannot introduce an offence. However, it is arguable that the general principle of Majewksi and §323a, that liability attaches for some drunken offenders, could be adopted with due regard to a need for an actual enquiry in each case. However, if the Oireachtas were to consider the matter, and since it has been argued that no other real difference exists, the German model with its discretionary feature would be preferable. It must be stated however, that the fact that §323a is stated as an offence, has very little to do with this discretion. It is hoped the proposition that there is no ‘magic’ in a special offence has been proved in this essay.
* Junior Sophister Law Student, Trinity College, Dublin. I would like to thank Benedikt Fischer of the Addiction Research Foundation of Canada for his assistance in providing information on the German Legal System. I am also indebted to Rudiger Tscherning for his invaluable translation assistance and also to Dr. Neville Cox for his helpful comments on an earlier draft.
1 See for example the introduction to the Victoria Law Reform Committee, Inquiry into Criminal Liability for Self-Induced Intoxication (Government Printer, 1999). This review of the law was in response to public perception of its failure when a rugby player was acquitted of charges of assault towards women on the basis of intoxication evidence.
2 In 1975 the Butler Committee, (Butler Committee, Report of the Committee on Mentally Abnormal Offenders (Her Majesty’s Stationary Office, 1975), at 235-237), recommended the creation of a special statutory offence of committing a dangerous act while intoxicated. In 1980, a minority of the Criminal Law Revision Committee agreed with the Butler Committee that there should be a special statutory offence, but felt that aspects of the Butler Committee’s proposed offence should be changed. See Criminal Law Revision Committee, Offences Against the Person (Her Majesty’s Stationary Office, 1980). See also Ashworth, “Reason, Logic and Criminal Liability” (1975) 91 LQR 102, at 117-118; Bugg, “Intoxication and Liability: A Criminal Law Cocktail” (1985) Auckland ULR 144; Quigley, “Reform of the Intoxication Defence” (1987) 33 McGill LJ 1, at 30-47; Skene, “Drugs, Alcohol and Crime” (1986) 5 Australian Drug and Alcohol Review 279; Lord Elwyn-Jones L.C. (at 475) and Lord Edmund-Davies (at 496) in Majewski’s case supported the creation of a separate statutory offence. See also, in relation to Canada, Mr Justice Dickson (dissenting) in R v. Leary (1977) 33 CCC (2d) 472, at 495 and again in his dissenting judgment in R v. Bernard (1988) CCC (3d) 1, at 18.
3 Intoxication was referred to in People (AG) v. Manning (1955) 89 ILTR 155, but the case is rarely cited as authority for a general treatment of the intoxicated offender. Indeed, in the most recent textbook on Irish criminal law, McAuley and McCutcheon’s Criminal Liability, A Grammar (Round Hall Sweet and Maxwell, 2000), Irish authority warrants only half a page out of an intoxication chapter of fifty-seven pages. The topic has been the subject of a report by the Law Reform Commission, Consultation Paper on Intoxication as a Defence to a Criminal Offence, (Law Reform Commission, 1995).
4 It may be preferable to allow such a defence, as has been done in Australia. See R. v. O’Connor (1979) ALR 449. The concern of this paper however, is solely on a choice between two approaches that deny a general excuse on the basis of intoxication. The exclusion of such a defence is favoured in the recommendations of the Law Reform Commission, ibid., at 11.
5 DPP v. Majewski  AC 443;  2 All ER 142.
6 This term is chosen here over ‘basic intent’ to avoid the problems of definition of that term.
7 See generally, Singh, “History of the Defence of Drunkenness in English Criminal Law” (1933) 49 LQR 528; McCord, “The English and American History of Voluntary Intoxication to Negate Mens Rea” (1990) 11 J Leg Hist 372, at 374.
8 The Penitential of Theodore; Theodori Liber Poenitentialis III 13; Thorpe, Ancient Laws, (Vol. II, 1864) at 5; “Whoever shall have killed a man while drunk shall be guilty of homicide and by killing another Christian. And penitence by fasting is enjoined to restore that guilty man to the favour of the lord.” Despite an apparent contradiction in The Penitential of Ecgberht, Ecgberti Poenitentiale, IV, 68, 22; Thorpe, Ancient Laws, (Vol. I, 1864) at 231, where penance for an intoxicated killing is described as being the same as homicide committed in anger, Singh has argued that the two are reconcilable and stand as authority for the claim that the ecclesiastical law in seventh century England rejected, as total the defence of drunkenness. Singh, loc. cit., at 528.
9 Indeed as far back as 1551 in Reniger v. Feogossa (1551) 1 Plowden 19; 75 ER 1, the emphasis appears to have been placed on the intoxication itself as a blameworthy act:
“If a person that is drunk kills another, this shall be felony, and he shall be hanged for it, and yet he did it through ignorance, for when he was drunk he had no understanding nor memory: but inasmuch as that ignorance was occasioned by his own act and folly, and he might have avoided it, he shall not be privileged thereby.” Ibid., at 31.
10 The Ethics of Aristotle; The Nicomachean Ethics, (Thompson, tr., Penguin Books, 1976) at 383. See Book III, “Moral Responsibility – Two Virtues”, at 123. Quoted with approval in Reniger v. Feogossa (1551) 1 Plowden 19; 75 ER 1, at 31.
11 “”As for a drunkard who is voluntarius daemon, he hath no privilege thereby, but what he hurt or ill soever he doeth, his drunkenness doth aggravate it.”” Coke, Institutes of the Laws of England, Book 1, (1628) at 247.
12 In R v. Grindley, Unreported, referred to in R v. Carroll, (1835) 7 C & P145; 173 ER 64, Holroyd J. allowed the fact of intoxication to be considered as evidence in a murder case where the question was whether the act was one of premeditation or one of sudden impulse. However R v. Carroll (1835) 7 C & P145; 173 ER 64 overruled it. The effect on intent of intoxication was considered in R v. Meakin (1836) 7 C & P 541, R v. Cruse (1838) 8 C & P 541 and R v. Monkhouse (1849) 4 Cox CC 55 before the important judgment of Stephen J in R v. Doherty (1887) 16 Cox CC 306. In relation to whether the jury should reach a verdict of murder or manslaughter he said that the ability to form an intention might be affected by alcohol. R v. Meade  1 KB 895 widened the principal. Here the English Court of Appeal affirmed the presumption that a man intends the natural consequences of his act, but held that this could be rebutted by evidence of drunkenness which would tend to show “that he was incapable of knowing that what he was doing was dangerous, i.e. likely to inflict injury”, at 899.
13 DPP v. Beard  AC 479. See Beaumont, “Drunkenness and Criminal Responsibility – Recent English Experience” (1976) 54 Can Bar Rev 777; Williams, Criminal Law: The General Part (2nd ed., Stevens & Sons, 1961); Williams, The Mental Element (Stevens & Sons, 1965); Beck and Parker, “The Intoxicated Offender – A Problem of Responsibility” (1966) Can Bar Rev 563; Orchard, “Drunkenness, Drugs and Manslaughter”  Crim LR 132; Ashworth, “Reason, Logic and Criminal Liability” (1975) 91 LQR 102; Dashwood, “Logic and the Lords in Majewski”  Crim LR 532; Fairall, “Majewski Banished” (1980) 4 Crim LJ 264; Colvin, “A Theory of the Intoxication Defence” (1981) 59 Can Bar Rev 750; Quigley, “Specific and General Nonsense” (1987) 11 Dalhousie LJ 75; Goode, “Some Thoughts on the Present State of the Defence of Intoxication” (1984) 8 Crim LJ 217; Quigley, “Reform of the Intoxication Defence” (1987) 33 McGill LJ 1.
14  AC 479, at 499.
15 Bratty v. AG for Northern Ireland  AC 386, per Lord Denning, “if the drunken man is so drunk that he does not know what he is doing, he has a defence to any charge … in which a specific intent is essential” at 410.
16 DPP v. Majewski,  AC 443;  2 All ER 142.
17 Contrary to section 46 of the Offences Against the Person Act 1861 and section 51(1) of the Police Act 1964.
18  AC 443, at 457.
19  AC 443, at 476.
20  AC 443, at 474-475. Emphasis added. Lords Diplock, Kilbrandon and Simon of Glaisdale concurred.
21 Great Britain Law Commission, Legislating the Criminal Code: Intoxication and Criminal Liability (Her Majesty’s Stationary Office, 1995) at 29, para. 3.27.
22 R v. O’Connor (1979) 29 ALR 449.
23 Victoria Law Reform Committee, Inquiry into Criminal Liability for Self-Induced Intoxication (Government Printer, 1999), Chapter 6 at 78.
24  AC 443, citing and approving Lord Simon of Glaisdale in DPP v. Morgan  AC 182, at 216.
25 For example, where someone steals with intent to deprive the owner of the property in perpetuity, the fact that this does not actually occur in fact, does not negate any charge of the crime of theft. See Williams, Textbook of Criminal Law, (1st ed., Stevens, 1978) at 429-430.
27  AC 341.
28 Ibid., at 355.
29 Great Britain Law Commission, Legislating the Criminal Code: Intoxication and Criminal Liability (Her Majesty’s Stationary Office, 1995), at 27, para. 3.20.
30 DPP v. Majewski  AC 443, at 482;  2 All ER 142, at 157.
31 R v. Fotheringham (1988) 88 Cr App R 206;  Crim LR 846.
32 DPP v. Majewski  AC 443, at 482;  2 All ER 142, at 157.
33 Bratty v. AG for Northern Ireland  AC 386, at 410.
34 R v. Durante  1 WLR 1612;  3 All ER 962.
35 DPP v. Majewski  AC 443;  2 All ER 142.
36 R v. Caldwell  AC 341, at 350-351.
37 R v. Kellet  Crim LR 916.
38 R v. C.  Crim LR 642; The Times 17 April 1992 (Court of Appeal).
39 R v. Cullen  Crim LR 936
40 R v. Sheehan  1 WLR 739;  2 All ER 960.
41 R v. Aitken  1 WLR 1006, at 1016-1017.
42 R v. Pordage  Crim LR 575.
43 R v. Aitken  1 WLR 1006, at 1016-1017.
44 R v. Pordage  Crim LR 575.
45 R v. Hutchins  Crim LR 379.
46 R v. Durante  1 WLR 1612;  3 All ER 962.
47 R v. C.  Crim LR 642.
48 R v. Durante  1 WLR 1612;  3 All ER 962.
49  AC 479.
50 Hereafter referred to as StGB. An English translation of this Code is available at: http://iuscomp.org/gla/statutes/StGB.htm.
51 Heinitz,”Die rechtlichen Schwierigkeiten bei der Auslegung des §330a StGB” 44 Deutsche Zeitschrift für gerichtliche Medizin 509.
52 This translation differs from that used in the Victoria Law Reform Committee, Inquiry into Criminal Liability for Self-Induced Intoxication (Government Printer, 1999), and in the South African Law Commission, Offences Committed Under the Influence of Liquor and Drugs (Pretoria, 1986), at 80. In both these documents the translation appears as using the phrases “negligently or intentionally” where “deliberate and careless” are more precise translations.
54 §323a (3).
55 Hereafter referred to as Schuld.
56 Fischer and Rehm, “Alcohol Consumption and the Liability of Offenders in the German Criminal System” (1996) 23 Contemporary Drug Problems 707, at 719; Fischer and Rehm, “Intoxication, the Law and Criminal Responsibility – A Sparkling Cocktail at Times: The Case Studies of Canada and Germany” (1998) 4 Eur Addict Res 89.
57 Daly, “Intoxication and Crime: A Comparative Approach” (1978) 27 ICLQ 378.
58 BGHSt 2, 200.
59 BVerfGE 20, 3323 at 3331.
60 Mens rea for example is not the same as blameworthiness. See R v. Kingston  2 AC 355.
61 Daly, loc. cit., at 382.
62 Wessells, Strafrecht Allgemeiner Teil (5th ed., c.1948); See Daly, loc. cit., at 381. The diagram in both of these is based on an older interpretation of a two-tier approach where what is now labelled C, was a part of the B(I) section. Accepted German jurisprudence now seems to indicate that it is a separate tier.
63 Despite an initial decision by the Bavarian State Appeal Court, (Bay.ObLGURS (1958) 108) that pain killers are not such a substance for the purposes of §323a StGB, perhaps on the basis of academic criticism it is now the case that where such drugs are taken to deliberately procure a state of intoxication they can come within §323a. In the cases of R v. Bailey  2 All ER 503 and R v. Hardie  3 All ER 848, English courts have upheld a distinction between medicinal drugs and those of a ‘dangerous nature’. An intoxication resulting from the taking of non-dangerous drugs will only lead to liability if harm results where the accused recklessly took the drugs. Reckless here is to be understood in the subjective sense. Further it is a general recklessness, as no actus reus of a specific crime must be foreseen, rather any crime committed will be punishable.
64 Daly, loc.cit., at 382.
65 Indeed, in this jurisdiction similar concerns were voiced in the context of s.78 of the County Courts and Officers Acts 1878, where one reading of it could have possibly made it unlawful to drive a vehicle on a road. The Irish courts unsurprisingly rejected this interpretation in McGowan v. Carville  IR 330.
66 Maurach, Schuld und Verantwortung (Karlsruhe, 1948), at 110.
67 This is seen as an attempt to overcome the difficult fitting of §323a within the general principles of German Criminal law and also to mitigate or avoid the harshness of convicting a person for an act that they hadn’t desired, foreseen, or had any inclination towards. Therefore this approach is confined to where a mental state short of intent exists but where, between the intoxication act and the internal act, there is some mental connection. In response to this the 5th Strafsenat of the BGH held that the deliberateness or carelessness as envisaged in §323a (then §330a) required it to be shown, in order to convict, that the accused was aware or ought to have been aware that he could commit some criminal act during his intoxication. However, the court went further and stated that in the normal case such foresight would be obvious or self-evident and that only in an exceptional case would the court be required to actually find that this foresight was lacking. In comparison, the Lord Chancellor in Majewski seemed to follow a similar line stating that intoxication, in and of itself was a reckless course of conduct. It could be argued that the presumed foresight resulting from the BGH decision is broadly similar to this apparently irrefutable presumption in Majewski.
68 BGHSt 1, 124.
69 See Daly, loc. cit., at 388.
70 BGHSt 16, 124.
71  AC 443;  2 All ER 142.
72 Horder, “Sobering Up? The Law Commission on Criminal Intoxication” (1995) 58 MLR 534.
73 Recklessness either involves the objective standard, running an objectively unjustifiable risk, or the subjective standard, consciously taking an unjustified risk. For the act of intoxication to be reckless, the risk of harm resulting must be so great to make the act unjustified, in either sense. See R. v. Cunningham  AC 566; R. v. Caldwell  AC 341. It is arguable that the vast majority of people do not cause harm when drunk. How can one say that the risk is then so great as to be unjustified? The answer must lie in the concept that any drinking carries a risk, no matter how small the potential of harm to others. This risk is greater than if there was no intoxication.
74 Heinitz, loc. cit.
75 Daly, loc. cit., at 389.
76  AC 443, at 484.
77 Victoria Law Reform Committee, Inquiry on Criminal Liability for Self-Induced Intoxication, (Government Printer, 1999) at 59.
78 Daly, loc. cit., at 400-401.
79 Ibid., at 399.
80 Ibid., at 401.
82 Heinitz, loc. cit.
83 Natural law’s most influential periods came at times when concerns over the harshness of rule of a nation were at its most vocal or in the aftermath of some disaster. Some device was required in order to prohibit the future recurrence of events that were distasteful to the people, but in strict legal sense could not be dealt with. The natural law was the answer. See generally, Kelly, A Short History of Western Legal Tradition (Oxford University Press, 1992).
84 According to §20.
85 Reported 12 Blutalkohol 406.
86 Daly, loc. cit., at 402.
87  AC 443, at 471;  2 All ER 142 at 147.
88 But this must be mens rea in some loose sense. Earlier in his speech the Lord Chancellor found the mens rea for the criminal act as existing in the form of recklessness. This recklessness was provided by the act of intoxication. Yet later as the quote here shows, he finds the mens rea for the act as defined in the actus reus of the criminal act itself, and not the intoxication act. If mens rea is already supplied from the intoxication act, then this extra mens rea is irrelevant, and one could argue that its discussion by the Lord Chancellor is a concession to the dubiousness of this previous assertion of the location of the mental element. It can be thus seen as a demand of a further mens rea obviously in a looser sense, directed at the internal act itself. This seems to parallel the German approach where although Schuld is explicitly excluded from the internal act, it is seen as desirable to have some mental element proved.
89 It must be noted that the existence of this discretion is not a result of the status of §323a as an offence. Rather, it is arguably simply a concession to the fact that it may be illogical to presume people have formed an intent which arguably they did not have in the first place. It would be possible, for example, for the Majewski formulation to incorporate a discretionary tool such as the natural will as well.
90 Daly, loc. cit., at 403.
91  AC 443, at 474-475.
92  AC 443.
93 See Victoria Law Reform Committee, Inquiry into Criminal Liability for Self-Induced Intoxication (Victoria, 1999), at 82.
94 R. v. Majewski  AC 443, at 474-475.
95 Great Britain Law Commission, Legislating the Criminal Code: Intoxication and Criminal Liability, (Her Majesty’s Stationary Office, 1995) at 27, para. 3.20.
96 “The offender is not punished for the act done while intoxicated, rather he is punished for intoxication providing the side effect of the particular harmful act.” See Fischer and Rehm, “Alcohol consumption and the liability of offenders in the German criminal system” (1996) 23 Contemporary Drug Problems 707, at 720. The internal act, is however, an objective condition of liability, which must be established in order to ‘move on’ to the §323a offence itself.
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