CRIMINAL LAW GROUP 3

statutory requirements oN the defence of intoxi

examination of the criminal code & judicial authorities

uNIVERSITY OF IBADAN
dr adejumo
GROUP 3 MEMBERS
1. Adenekan Adeife 220145
2. Afolabi Saheed Babatunde 221811
3. Ogbodo Babatunde Kareem 221874
4. Ajayi Olayinka James 221812
5. Olutomilayo Opeyemi 221900
6. Nuhu Shekinah Tindenarimam 221869
7. Adebowale Kolawole 221797
8. Oyekunle James 221910
9. Oyedijo Deborah Ayomide 220238
10. Olalekan Waleeyah Taiwo 221891
11. Oluyide Excellent Eunice 221904
12. Azeez Olaolu Kolawole 221835
13. Adedoyin Tosin Israel 183979
14. Esosuakpo Avwerosuoghene 221851
15. Eze Jacob Israel 221852
16. Moseri Favour 221866

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Contents
1.0 Introduction.................................................................................................................................................3
2.0 The State of Mind........................................................................................................................................3
3.0 Knowledge of Substance.............................................................................................................................4
4.0 Voluntariness of Intoxication......................................................................................................................5
5.0 Illegal Substance in Nigeria.........................................................................................................................6
5.1 Cannabis................................................................................................................................................6
5.2 Opoids..........................................................................................................................................................6
5.3 Stimulants....................................................................................................................................................7
5.4 Tobacco and Alcohol...................................................................................................................................7
6.0 Timing of Intoxication.................................................................................................................................7
7.0 Severity of Intoxication...............................................................................................................................9
8.0 The Role of Expert Testimony in Supporting or Refuting the Impact of Intoxication.............................10
9.0 Case Laws on Voluntary Intoxication.......................................................................................................11
10.0 Conclusion...............................................................................................................................................12

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1.0 Introduction
Intoxication is the condition of having physical or mental control markedly diminished by the
effects of alcohol or drugs.1 As a general rule, intoxication shall not constitute a defence to any
criminal charge. The two types of intoxication are involuntary intoxication and voluntary
intoxication. This study delves into the nuanced conditions necessary for the defence of voluntary
intoxication, as provided for in Section 29(2)(b) of the Criminal Code Act in Nigeria, in criminal
cases.

Voluntary intoxication, stemming from the willful consumption of substances, raises complex legal
questions surrounding an accused person's state of mind, knowledge of substance effects,
voluntariness, the timing of intoxication concerning the alleged criminal act, the severity of
intoxication, and its relevance to specific intent crimes. The analysis delves into legal precedents
and contemporary interpretations, exploring how meeting these conditions impacts the viability of
the defence. By scrutinizing these factors, the study aims to provide a comprehensive
understanding of the intricacies surrounding the defence of voluntary intoxication within the realm
of criminal law.

2.0 The State of Mind

The accused's state of mind can be an important factor in determining whether they are guilty of a
crime. The law considers whether the accused acted with intent, knowledge, or recklessness. If the
accused acted with intent, they knowingly and deliberately carried out the act that resulted in the
crime. If they acted with knowledge, they were aware that their actions could lead to the crime. If
they acted with recklessness, they were aware of the risks but proceeded anyway. The accused's
state of mind can be determined through evidence such as testimony, physical evidence, or even
psychological evaluations.
Section 29(2) of the criminal code act provides "intoxication shall be a defence to any criminal
charge if by reason thereof the person charged at the time of the actor omission complained of did
not know that such act or omission was wrong or did not know what he was doing and
a) the state of intoxication was caused without his consent by the malicious or negligent act of
another person; or
b) the person charged was by reason of intoxication insane, temporarily or otherwise at the time of
such act or omission
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Flowing from the above, intoxication can be a defence if, at the time of the alleged act or omission,
the accused was unaware that the action was wrong or didn't comprehend their actions. This
defence applies when intoxication results from another person's malicious or negligent act without
consent or when the accused, due to intoxication, is temporarily insane during the act. Importantly,
this defence is applicable only in cases where specific intent is required, as demonstrated in DPP v.
Majewski, where lack of intention does not exonerate an accused in offenses of basic intent.

3.0 Knowledge of Substance

Evaluating the accused's awareness of the knowledge of the substance's intoxicating nature and its
cognitive effects is crucial in determining the applicability of the defence of voluntary intoxication.
In assessing the accused's awareness of the substance's intoxicating nature 1, the court will consider
whether they had prior experience with the substance and were familiar with its effects. This prior
knowledge is significant because it suggests that the accused understood the potential impact of the
substance on their mental faculties and their ability to make rational decisions. If the accused had
previously consumed the same or similar substances and experienced their intoxicating effects, it is
less likely that they would be able to claim 2 that they were unaware of the potential impact on their
behavior because their prior experience would indicate that they had a reasonable expectation that
the substance could impair their judgment and control.
Conversely, if the accused had no prior experience with the substance, it may be more plausible
that they were genuinely unaware of its potential impact on their mental state and in such cases, the
court would carefully consider the circumstances surrounding the consumption. The knowledge of
prior used can therefore be assessed in the following ways:

● The accused's admission of prior use: If the accused admits to having consumed the

substance in the past, this is strong evidence that they were aware of its intoxicating nature.

● Testimony from others: Friends, family, or acquaintances may be able to testify that they

have seen the accused consume the substance in the past or that they are aware of the
accused's general knowledge of the substance's effects.

● Medical records: If the accused has a history of substance abuse or has sought treatment for

1 Ogundipe, O. A. (2016). Intoxication and criminal liability in Nigeria: A jurisprudential analysis.

2 Gunn, J., & Taylor, P. J. (2005). Intoxication and legal defences. Advances in Psychiatric
Treatment, 11(5), 375-383
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 addiction, this may indicate that they were familiar with the substance's effects.
The evaluation of the accused's awareness of the substance's effects is crucial for the defence of
voluntary intoxication. This assessment considers prior knowledge, substance consumption,
behavior, and expert testimony. Applying the M'Naghten rule, the court determines if intoxication
prevented intent formation.

4.0 Voluntariness of Intoxication

In deciding the extent to which intoxication should negate liability in criminal cases, the law has
provided for two classes of the defence: involuntary and voluntary intoxication, both provided for
in S. 29(2) of the Nigerian Criminal Code3.
The importance of this distinction lies not only in establishing which situations would provide a
valid defence for crimes of basic or specific intent, but also serves as a means of establishing
whether or not the accused lacked the required mens rea. Can a person claim he lacked the required
mens rea when his intoxication was caused by his reckless actions? This question was firmly
answered in DPP v. Majewski 4 where the court flatly rejected the defendant’s plea of intoxication
which was as a result of a 24-hour drinking spree.
Since a distinction must be drawn, in what instances will the court consider intoxication
“voluntary”? Voluntary intoxication is the willing ingestion or injection of any drink, drug, or other
intoxicating substance that the defendant knows can produce intoxicating effect 5. It rests on the
consent of the defendant. This means that instances of coercion and unknowing consumption can
render intoxication involuntary. For example, where a person is forced into ingesting drugs or has
an intoxicating substance slipped into their drink, the resulting intoxication cannot be said to be
voluntary. Similarly, where a person is misinformed about the intoxicating qualities of a substance,
intoxication cannot be said to be voluntary.

5.0 Illegal Substance in Nigeria

Part 2 of the National Drug Law Enforcement Agency Act provides for a list of substances
regarded as illegal thus; Any person who, without lawful authority:

● Imports, manufactures, produces, processes, plants or grows the drugs popularly known as

3 Cap C38 LFN 2004

4 2 All E.R. 142 (1976)
5 https://www.law.cornell.edu/wex/intoxication
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 cocaine. LSD, heroine or any other similar drugs shall be guilty of an offence and liable on
conviction to be sentenced to imprisonment for life: or

● Export, transports or otherwise traffics in the drugs popularly known as cocaine, LSD

heroine or any other similar drugs shall be guilty of an offence and liable on conviction to
be sentenced to imprisonment for life.

● Sells, buys, exposes or offers for sale or otherwise deals in or with the drugs popularly

known as cocaine, LSD heroine or any other similar drugs shall be guilty of an offence and
liable on conviction to be sentenced to imprisonment for life: or

● Knowingly possesses or uses the drugs popularly known as cocaine. LSD heroine or any

other similar drugs by smoking inhaling or injecting the said drugs shall be guilty of an
offence on conviction to imprisonment for a term not less than fifteen years but not
exceeding 25 years.

5.1 Cannabis
Cannabis is the most commonly used drug in Nigeria with 10.8 percent (or 10.6 million people) of
the adult population reporting use in the past year. Nigeria is among the main countries globally
that reported high quantities of cannabis herb seized in 2016. The extent of cannabis use in Nigeria
is comparable to the 2016 UNODC prevalence estimates of cannabis use in West and Central
Africa (13.2 per cent). Cannabis use is reported 7 times higher among men than women with past
year prevalence estimated at 18.8 percent among men as compared to 2.6 per cent among women.
The current mean age of men using cannabis was 34 years while women cannabis users were
slightly younger – with a mean age of 31 years. The average age of initiation of cannabis use was
19 years regardless of gender. Thus at present, on average a cannabis user had been using cannabis
for nearly 15 years.

5.2 Opoids
Opioids is a generic term applied to opiates and their synthetic analogues with actions similar to
those of morphine. Therefore, opioids are commonly used as painkillers, for the treatment of acute
and chronic pain, and as an anaesthetic during surgery. Synthetic opioids are structurally diverse,
can be extremely potent, and include a variety of substances including a number of fentany
derivatives, methadone, buprenorphine and AH-7921.23 Nationwide, 4.7 per cent of the adult
6
population are estimated to be past year users of opioids. The estimate of past year opioid use is
driven predominantly by past year non-medical use of pharmaceutical opioids such as tramadol,
codeine or morphine.

5.3 Stimulants
Stimulants are psycho-active drugs also referred to as psycho-stimulants , that have a stimulatory
effect on the central nervous system. Stimulants are characterized by their ability to increase
alertness, heighten arousal and cause behavioural excitement. Pharmaceutical stimulants include,
among others Adderall, Dexedrine or Ritalin, that are often prescribed to treat attention deficit
disorder (ADD), attention deficit hyperactivity disorder (ADHD) and narcolepsy. However, these
are also commonly misused along with illicitly sourced amphetamine. Overall, 670,000 people (an
estimated 0.6 per cent of the population aged 15-64) had used different stimulants such as
amphetamines (including non-medical use of prescription amphetamine, illicit amphetamines),
cocaine and ecstasy in the past 12 months

5.4 Tobacco and Alcohol

Among the general population, nearly 15 per cent of the adult population had smoked or used a
tobacco product, whereas nearly 7 per cent of men and 1 per cent of women were currently (past
30 days) smoking or using tobacco products. These estimates of current tobacco use among the
general population are comparable with the results of 2012 Global Adult Tobacco Survey
conducted in Nigeria. With a mean number of 78 cigarettes smoked per month, manufactured
cigarettes were the most common tobacco product used in Nigeria. Overall, nearly one quarter of
the adult population in Nigeria reported using an alcoholic drink in their lifetime

6.0 Timing of Intoxication

Analysing the temporal relationship between intoxication and the commission of a crime is a
critical aspect in legal considerations, as it can significantly impact the application of defences and
the determination of culpability. Section 29(2) of the Criminal Code 6underscores the importance
of timing in the context of intoxication as a defence. This section provides that intoxication may
serve as a defence if, at the time of the act or omission complained of, the accused did not know
that such act or omission was wrong or did not comprehend the nature of their actions. In the case

6 jurist.ng. Section 29 of the Criminal Code Act in Nigeria. Intoxication - Home 2023. Available at:
https://jurist.ng.
7
of DPP v. Majewski (1997),7 the court delved into the temporal aspect of intoxication. Majewski,
after spending 24 hours consuming alcohol and drugs, engaged in destructive behavior, including
attacking a police officer. The trial judge ruled that intoxication could only be a defence to crimes
of specific intent8, and since Majewski was charged with offenses of basic intent, his state of
extreme intoxication did not provide him a defence. The temporal element is further highlighted in
the case of Attorney General of Northern Ireland v. Gallagher (1963). 9 Here, Gallagher consumed
alcohol with the intention of gaining Dutch courage before committing a crime. The House of
Lords held that, despite his subsequent extreme intoxication, it could not serve as a defence for a
person who intentionally became drunk to carry out a crime. Section 44 of the Penal Code
10
reinforces the importance of considering the timing of intoxication. It stipulates that voluntary
intoxication is not a defence to a criminal charge. Additionally, it establishes a presumption that a
person who commits an act in a state of intoxication is presumed to have the same knowledge as
they would have had if they were not intoxicated. This presumption underscores the idea that
individuals cannot evade responsibility for their actions by relying on voluntary intoxication. In
cases of involuntary intoxication, the timing becomes crucial in determining the nature of the
intoxicating substance. The court, as seen in the example of sedative drugs in the case of Hardie
(1985),11 considers factors such as the legality of the drug, the accused's knowledge of its effects,
and whether the intoxication was reckless behavior. The temporal relationship between
intoxication and the commission of a crime is a nuanced factor in legal proceedings. It is essential
for the court to assess whether the accused's state of intoxication aligns with the criteria set forth in
relevant sections of the Criminal Code and Penal Code, as well as consider precedents established
in cases such as Majewski, Gallagher, and Hardie.12

7.0 Severity of Intoxication

As a general rule, everybody is presumed to be sane at all time and will not hide under his
malicious, self induced or negligent act to raise a defence of Intoxication when he or she
7 journals.ezenwaohaetorc.org. Intoxication and criminal liability in nigeria - PREORC Open Journals. Available at
https://journals.ezenwaohaetorc.org.
8 Study.com. Specific Intent Crimes | Definition, Examples & Comparisons. Available at:
https://study.com.
9 [1963] AC 349
10 jurist.ng. Section 44 of the Criminal Code Act in Nigeria. Inciting to mutiny. Available at:
https://jurist.ng.
11 R v Hardie [1985] 1 WLR 64
12 CanLII. The Intoxication Defence: Constitutionally Impaired and in ... Available at:
https://www.canlii.org.
8
committed a proscribe act.13 Similarly, a person who does an act in a state of Intoxication is
presumed to have the same knowledge as he would have if he had not been intoxicated. 14 However,
the law allow an accused to raise a defence of Intoxication when he was drunk at the time he
committed an unlawful act for which the Intoxication was not caused by his own willful act but by
the negligent and malicious act of another15 or one that caused temporary insanity otherwise in his
state of reasoning.16
The legal purpose of proving Intoxication is to negative the mens rea(mental element) which is an
essential element of a criminal responsibility. By implication, the accused , though did the act or
omission but claim that he did not have the requisite intention or knowledge for the crime.
The law does not specify particularly the degree or extent of Intoxication. But the Intoxication
must have beclouded the accused state of mind causing insanity temporary or otherwise. So that he
did not know that such act or omission was wrong or did not know what he was doing at the time
of such act or omission was committed.17
The reason behind the defence is to show that a person should not be held liable for an offense
where he lacks or have no intention of committing the act but as a result of the effect of alcohol or
substance induced in him cognitive impairment which block chemical signals between the brain
cells, leading to the common immediate symptoms of Intoxication, including impulsive behavior,
slurred speech, poor memory and slowed reflexes. 18. The defence of Intoxication will not avail the
accused where it is shown in the evidence and circumstances of the case that he formed an intent to
commit the act even though he was intoxicated.19

8.0 The Role of Expert Testimony in Supporting or Refuting the Impact of

Intoxication
As a general rule, the defence of intoxication does not discharge criminal liability, however, where,
for example the intoxication is involuntary and even in some cases where it is voluntary,

13 Section 29(1) of the Criminal Code Act LFN 2004: see also Ahmed V. State (1999) 7 NWLR (pt.612) 641 per
Ogundare , JSC (as he then was)
14 Section 44 of the Penal Code Act
15 Section 29(2)(a) of the Criminal Code Act LFN 2004
16 Sec. 29(2)(b) of the Criminal Code Act LFN 2004
17 Ibid
18 Alcohol's Effects on the Brain and Cognitive Improvement in Recovery by Butler Center for Research- May
1,2015. Accessed at www.hazeldenbettyford.org
19 See R v. Owarey (1936) 5 W.A.C.A 66 . Where the court held that intoxication sufficient to negative intent is
based on question of fact in all circumstances of the case. See also Attorney General for Northern Ireland v. Gallagher
(1936) A.C. at 382 : Lord Denning
9
intoxication may have some mitigation effect on criminal liability 20. The rule concerning the
defence of intoxication is provided in section 29 (2) of the Criminal Code 21. The provision of the
aforementioned section states the grounds upon the defence of intoxication will avail an accused
person who raises it as a defence for an offence committed. Simply put, it is that the consumption
of any intoxicant must have been caused by the malicious or negligent act of another person or
caused insanity, eliminating the presence of mens rea in the accused for the defence of intoxication
to avail him. The claim of insanity as a result of intoxication is not always black and white or
within the purview of the jurors and so the court would often require the help of experts to prove it.
Expert evidence is admissible to furnish the court with information which is likely to be outside the
experience and the knowledge of a judge or jury in a manner 22 that is objective and unbiased often
supported by the presence of other relevant evidences adduced. When done in contravention to this
established rule, the expert evidence becomes inadmissible as seen in the case of R v. Barry, where
the defendant did not adduce evidence but called on two psychiatrists. The undeniable relevance of
the need of expert evidence was given in the case of R. v. Cameron where the trial judge held that
where matters in issues go outside that experience of ordinary men and women then plainly in such
a case they are entitled to the benefit of expert evidence.
Regardless of the fact that insanity is given a purely legal definition, psychiatrists must be
permitted to testify fully about the defendant’s diagnosis, mental state and motivation so as to
permit the jury or judge to reach ultimate conclusions23.

9.0 Case Laws on Voluntary Intoxication

ACDPP v Majewski 1977 AC 142
The defendant was convicted of various counts alleging actual bodily harm, and assaults on police
officers. The offences had occurred after the defendant had consumed large quantities of alcohol
and drugs. The trial judge had directed the jury that self-induced intoxication was not available as a
defence to these basic intent crimes. The defendant was convicted and appealed unsuccessfully to
the Court of Appeal and the House of Lords.

R v Lipman 1970 1 QB 152

20 Pg 160. Okonkwo & Niash Criminal Law in Nigeria

21 C.C s 29 (2) (a)
22 R v. Turner [1975] QB 834
23 R v. Barnes (unrep CA 421/94 15. 2. 95)
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The defendant, having voluntarily consumed LSD, had the illusion of descending to the center of
the earth and being attacked by snakes. In his attempt to fight off these reptiles he struck the victim
(also a drug addict on an LSD “trip”) two blows on the head causing injuries to her brain and
crammed some eight inches of bedsheet into her mouth causing her to die of asphyxia. He claimed
to have had no knowledge of what he was doing and no intention to harm her. His defence of
intoxication was rejected at his trial and he was convicted of unlawful act of manslaughter. His
appeal to the Court of Appeal was dismissed. Widgery LJ said:
“For the purposes of criminal responsibility we see no reason to distinguish between the effect of
drugs voluntarily taken and drunkenness voluntarily induced.”

R v Hardie 1985 1 WLR 64

The defendant had voluntarily consumed up to seven old valium tablets (a non-controlled drug
having a sedative effect) for the purpose of calming his nerves. Whilst under the influence of the
drug he had started a fire in the flat in which he had been living, but claimed to have been unable to
remember anything after taking the tablets. The defendant was convicted of causing criminal
damage being reckless as to whether life would be endangered, following the trial judge’s direction
to the jury that self-induced intoxication was not available by way of defence to a basic intent
crime. The defendant appealed and the conviction was quashed on appeal on the grounds that he
could not be expected to anticipate that tranquilizers would have that effect upon him.

Attorney General of Northern Ireland v Gallagher 1963 AC 349

The defendant decided to kill his wife. He bought a knife and a bottle of whisky which he drank to
give himself “Dutch Courage”.
Then he killed her with the knife. He subsequently claimed that he was so drunk that he did not
know what he was doing, or possibly even that the drink had brought on a latent psychopathic state
so that he was insane at the time of the killing. The House of Lords held that intoxication could not
be a defence in either case as the intent had been clearly formed, albeit before the killing took
place.

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10.0 Conclusion

This essay examined the conditions that characterise voluntary intoxication. The law presumes that
intoxication is voluntary unless evidence is produced that allows the court or jury to conclude the
possibility that it was involuntary. Voluntary intoxication is not, and never has been, a defence in
itself. It is not a defence to plead that by taking alcohol one’s judgement between right and wrong
was impaired or that one was no longer able to resist an impulse. The principal problem when
assessing the state of intoxication characterising an offender who has committed a criminal act is
that many offenders lack one of the key premises for responsibility for a criminal act, namely mens
rea.

The judgement of being legally guilty or culpable requires the conversion of legal and
philosophical values into working jurisprudence. Case law provides practical guidance when
considering issues of legal defences, but it is complex and subject to frequent reform. Although it
is the court process that decides on culpability, it is not unusual for psychiatrists to be asked to
comment on specific mental elements related to a criminal offence committed by an intoxicated
defendant. Aside from the well-established mental condition defences of insanity and diminished
responsibility, a working knowledge of the association between intoxication and intention is
therefore helpful

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