SCHOOL OF LAW AND GOVERNANCE

PROJECT ASSIGNMENT SUBMISSION ON

DEFENCE OF INTOXICATION

UNDER THE SUPERVISION OF

Dr. PAWAN KUMAR MISHRA, PROFESSOR, SCHOOL OF LAW AND
GOVERNANCE (CENTRAL UNIVERSITY OF SOUTH BIHAR)

SUBMITTED BY:-

NITISH KUMAR

BALLB (HONS.) 3RD SEMESTER

ENROLLMENT NUMBER:- CUSB2213125061

SUBJECT: LAW OF CRIME (SECTION A)

 ACKNOWLEDGEMENT

It is a great pleasure to express my deep sense of thanks and gratitude to my course instructor
and guide Dr. Pawan kumar Mishra. His dedication and keen interest above all and his
overwhelming attitude to help his students had been solely and mainly responsible for
completing my work. His scholarly and timely advice, meticulous scrutiny, and his logical
approach have helped me to a very great extent to accomplish my project in an excellent manner.
I owe a deep sense of gratitude to prof. S.P. Srivastava, dean of School of Law and Governance,
C.U.S.B, for making sure that we are provided with the best facilities and surroundings to fetch
the best out of ourselves. His prompt inspirations and timely suggestions with kindness,
enthusiasm and dynamism has also enabled me to complete my project on time. It is my great
privilege to thank my parents for their constant encouragement throughout my research period.

Nitish Kumar
 TABLE OF CONTENT

ACKNOWLEDGEMENT .............................................................................................................. 2

ABSTRACT .................................................................................................................................... 4

INTRODUCTION AND HISTORICAL BACKGROUND ........................................................... 5

DEFINITION .............................................................................................................................. 5

THE REQUIREMENTS OF CRIMINAL LIABILITY ................................................................. 6

THE DEFENCE OF INTOXICATION .......................................................................................... 7

INTOXICATION AND INTENTION ........................................................................................... 8

INTOXICATION AND CONCURRENCE ................................................................................. 13

CONCLUSION ............................................................................................................................. 13

BIBLIOGRAPHY ......................................................................................................................... 14
 ABSTRACT

The defense of intoxication is a legal argument that can be used to reduce or negate a criminal
defendant's criminal responsibility for their actions. The defense is based on the idea that the
defendant was so intoxicated that they were unable to form the necessary mental state (mens rea)
to commit the crime.

There are two main types of intoxication defenses: voluntary intoxication and involuntary
intoxication. Voluntary intoxication is when a person intentionally becomes intoxicated, while
involuntary intoxication is when a person becomes intoxicated without their knowledge or
consent.

In order for the defense of intoxication to be successful, the defendant must prove that they were
so intoxicated that they were unable to form the specific intent to commit the crime. This means
that the defendant must prove that they were so intoxicated that they did not understand the
nature and quality of their actions or that their actions were wrong.

The defense of intoxication is not a complete defense to all crimes. It is only a defense to crimes
that require specific intent. Crimes that require general intent, such as negligent homicide, are
not defenses to intoxication.

The defense of intoxication is a complex legal issue, and it is important to speak with an attorney
if you are considering using this defense.

Keywords: intoxication, defense, criminal law, criminal responsibility, mens rea, voluntary
intoxication, involuntary intoxication, specific intent, general intent.
 INTRODUCTION AND HISTORICAL BACKGROUND

The defence of intoxication is firstly known as drunkenness in English Law. The plea of
intoxication is used as a common-law defence to crime is a comparatively recent one. Until early
in the nineteenth century the common-law rule was that intoxication is never a defence, but as a
result of judicial decisions extending over the last hundred and nineteen years it has come to be
allowed as a defence in certain cases. Case-law supplies sufficient material for tracing the
development of this defence since the beginning of the nineteenth century, but for its earlier
history we have to rely chiefly on the fragments of intoxication found in the institutional writers.

The earliest mention, in English legal literature, intoxication in its relation to criminal
responsibility is to be found in the Penitential of Theodore, Archbishop of Canterbury from 668
to 690 A.D. There it is said that whosoever shall have killed a man while drunk shall be guilty of
homicide; he commits one fault by self-indulgence and another by killing a Christian. And
penitence by fasting is enjoined to restore that guilty man to the favor of the Lord. But elsewhere
in Theodore and in the Penitential of Ecgberht, Archbishop of York from 735 to 766 A.D.,
homicide committed in drunkenness is declared subject to the same penance as homicide
committed in anger. It would seem difficult to reconcile these texts, and the conflict of texts in
the law of the Church, as in all legal literature, especially ancient and medieval, is nothing
unusual. The reason for the liability of the drunkard for homicide as given in the Penitential of
Theodore is too clear to admit any extenuating circumstances.

DEFINITION

Generally, intoxication can be defined as a state in which a person's normal capacity to act of
reason is inhibited by alcohol or drugs. An intoxicated person is incapable of acting as an
ordinary prudent and cautious person would act under similar conditions as they are in the state
of out of consciousness Intoxication can affect criminal responsibility in several ways. In some
cases, it can result in a total of complete acquittal and in other circumstances; the accused may
receive a qualified acquittal. This is because in proving whether someone is guilty for an offence,
intention and guilty mind is one the element that needs to be considered. The defence of
intoxication is spelt out in section 85 and 86 of the Penal Code in section 85(1), it stated that it is
provided in this section and section 86 that intoxication shall not constitute a defence to any
criminal charge. Meanwhile in section 85(2) it stated that intoxication shall be a defence to any
criminal charge if by the person that were charged at the time of the act complained that he did
not know that such act was wrong or did not know what he was doing. It later explained in the
subsection 2(a) and (b).
 a) The state of intoxication was cause 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.

Meanwhile in section 86, it stated that if the defence falls under sub-section 85(2) is established,
then in a case falling under paragraph (a) thereof the accused person shall be acquitted, and in a
case falling under paragraph (b), section 84 of Penal Code and sections 347 and 348 of the
Criminal Procedure Code (Act 593) shall apply. According to this provision, there are three
forms of the defence of intoxication that can be extracted. The first is where a third party had
maliciously or negligently caused the accused to become intoxicated to the extent of not knowing
the act to be wrong or what he or she was doing. This is sometimes described as involuntary (or
non-self-induced) intoxication. The second form of defence is where the accused was so severely
intoxicated as to have been insane at the time of the alleged crime. Thirdly, an accused will be
acquitted of a crime which has intention as an element should intoxication have prevented him or
her from having that intention. As we shall see, the courts have regarded this third form as a true
defence which the accused has to prove on a balance of probabilities, as opposed to one which
the prosecution has to re but beyond a reasonable doubt as part of proving the fault element of
the crime charged. For the second and third forms, the intoxication could have been voluntary (or
self-induced).1

THE REQUIREMENTS OF CRIMINAL LIABILITY

In general, for crime to occur, two elements must be present simultaneously. The First element is
actus reus which is the conduct of a forbidden act or causing forbidden harm committed by the
wrong doer. This physical element can either be in the form of commission, an actual
performance of an act or omission, failure to perform an act which is imposed by the law. The
wrongful conduct must be done voluntarily in order to establish actus reus. Any bodily
movements and conduct done in the state of unconsciousness do not constitute a voluntary act.
This principle can be illustrated in the case of

1
This paragraph was quoted with approval by the Singapore High Court m PP v Tharema Vejayan s/o Govindasamy
{2009] SGHC 144 at [106].
R v Quick2

Where in this case, the defendant who suffered a diabetic illness was charged of assault. The
assault occurred whilst the defendant was in a state of hypoglycaemia which is a condition of
low blood sugar level due to an excess of insulin. The court held that the defendant should have
been acquitted on the ground of automatism. His unconscious state had been the result of
external factors which is the taking of insulin thus, act was done involuntarily. The second
requirement is mens rea, which refers to a blame worthy state of mind accompanied by a guilty
act. This mental element could exist in several forms such as the intention and voluntariness to
commit the wrongful act, the reckless and negligent conduct of the wrongdoer or the knowledge
that an act would amount to crime. The requirement of these two elements is summarized in the
Latin maxim „actus non facit reum, nisi mens sit rea‟ which means that an act does not make a
person guilty of committing an offence unless the act is followed by a guilty state of mind.
However, the use of the maxim does not universally apply to all crimes because the definition
and punishment of each crime is different. This is because, there are crimes where mens reas not
required to be proven. For instance, in strict liability offences liability could be imposed in the
absence of mens rea. To determine the need to prove both elements of actus reus and mens rea,
the court will refer to the definition of the particular offence to know the nature of the specific
criminal conduct.

THE DEFENCE OF INTOXICATION

Mainly, an intoxicated person is not capable of acting as an ordinary wise and attentive person
would act under similar conditions.3 Intoxication can occur when an accused consumes drugs or
alcohol. It is important to understand how far the accused is damaged by the intoxication and
how this may affect upon their conduct, if the accused wants to use intoxication as defence. The
accused need to prove these following elements to succeed in the defence of intoxication to
exempt him from his liability in crime, which are accused at the time of the act or omission
complained of did not know that such act or omission was wrong or did not know what he was
doing and the condition of intoxication was created without his permission by the harmful or
careless act of another person or accused charged was by basis of intoxication insane, for a short
time or otherwise, at the time of such act or omission.4 In the case of Francis Antonysamy v PP

2
[1973] QB 910
3
Hamdan NN, “Can Intoxication Become Defense?”. Retrieved from
https://www.researchgate.net/publication/313503114_Can_intoxication_become_defense accessed December 2,
2019
4
MLJ 893
[2005],5 the court is required to examine the appellant‟s conduct earlier to, at the time of and
after the commission of the offense. According to the Court of Appeal Judge, Augustine Paul, as
he then was, It must be observed that what is in issue in a defence of intoxication is the state of
mind of the person concerned in order to determine whether he could have formed the necessary
intention. The best proof to show his condition of mind is his act before, at a particular moment
and after the offence as different people react differently to the same blood alcohol level.
Needless to say, scientific evidence is significant to explain the conduct of the person. In other
words, it will corroborate the evidence of conduct. Its absence cannot therefore be fatal.”

As to evidence of intoxication, the bare statement of the accused that he was drunk at the time of
the act or omission complained of is inadequate to establish the defence of intoxication under the
Penal Code section 85 or 86 which was stated in the case of Ismail bin UK Abdul Rahman v
PP.6 In the case of Abdul Aziz bin Mohamed Shariff v PP,7 the court held that to prove
intoxication it is incumbent upon the defence to adduce sufficient proof to persuade the court that
this had given the accused incapable of building the required intention or knowledge to carry out
the murder. In the instant case, the evidence of the appellant having consumed a large quantity of
alcohol and the opinions of relatives, who were not medically qualified, that the appellant‟s
drunk condition was inadequate to establish possible defence of intoxication. Further on the facts
and other evidence, even if the appellant had consumed a large quantity of alcohol before
committing the crime, he was not intoxicated to the extent that his intention to carry out the
crime had lessened. Medical tests determining the blood alcohol level of the accused are relevant
in deciding whether he was intoxicated. There two types of defence of intoxication which are
voluntary intoxication and involuntary intoxication.

INTOXICATION AND INTENTION

Basdev v. State of Pepsu8

Court said: “Motive is something which prompts a man to form an intention. Knowledge is an
awareness of the consequences of the act. In many cases intention and knowledge merge into
each other and mean the same thing more or less and intention cam be presumed from
knowledge. The demarcating line between intention and knowledge is no doubt thin but it is not
difficult to perceive that they connote different things.”

a) Intoxication as a denial of mens rea:-

5
2005] 2 CLJ 481
6
[1974] 2 MLJ 180
7
[2010]6 MLJ 759
8
(1974) 3 SCC 490.
The concept of intoxication defense under criminal law is not considered a defense either by
excuse or exculpation. It is more usually considered an aggravating factor that increases the
degree of social disapproval reflected in the sentence imposed by the court. In the case of A-G
for Northern Ireland v. Gallagher9 Lord Denning stated two examples. The first related to a
nurse who got so drunk at a christening ceremony that she put the baby on the fire thinking it
was a log of wood. The second related to an intoxicated person who thought that his friend lying
on the bed was a theatrical dummy and stabbed him to death. According to Lord Denning there
would be a defence to murder in each of these cases. It was stated that drunkenness makes
mistakes much more conceivable.10 In the case of Director of Public Prosecution v. Beard11
the accused raped and murdered a 13 years old girl and took the plea of intoxication. It was held
that intoxication may only be a basis for defence if the accused was unable to form mens rea.
There have been considerable developments in the field of criminal law in recent cases such as,
Soolkal & another v. The State,12 where the court has asked the accused to show specific
evidence that he was intoxicated and lacked mens rea. The court also stated that the burden of
proof in such cases resting on the defendant will not be satisfied only by offering evidence that
the accused had consumed alcohol or by a loss of memory due to intoxication.

b) Involuntary intoxication is not a defense if mens rea is present:

R v Kingston13

It was held that involuntary intoxication is no defence to a criminal charge and is only relevant
insofar as it disproves or proves mens rea. An intent produced by the superstitious administration
of drink or drugs is still a criminal intent. After the judgment of the case, involuntary intoxication
is to be considered as a mitigating factor in sentencing. The only difficulty arises in the case of
the mandatory life sentence for murder where involuntary intoxication cannot be taken into
account at the sentencing stage. It was for this reason alone that the House had any hesitation in
rejecting the creation of a new defence. In the end Lord Mustill concluded that this was not a
sufficient reason to force on the theory and practice of the criminal law an exception which
would otherwise be unjustified. If a drunk person causes a fatal injury to another he cannot be
convicted under s.302 I.P.C a she did not have the requisite intent to kill but could still be
convicted under s. 304 Part II, I.P.C., by virtue of imputed knowledge under s. 86 I.P.C.14

Lord Denning has said: “When people say that a man must be taken to intend the natural
consequences of his acts, they fall into error: there is no „must‟ about it. It is only „may‟.

9
1961] 3 All ER 299.
10
Michael J. Allen, Textbook on Criminal Law, (London: Blackstone Press Ltd., 1999, 5th edn.).
11
[1920] 2 All ER 479 (HL)
12
[1999] 1 WLR 2011, PC
13
[1994] 3 All ER 353, HL.
14
Ratanlal and Dhirajlal, The Indian Penal Code, (Nagpur: Wadhwa & co.,13th ed., 2004) pp 124.
 c) The rule laid down in the case Director of Public Prosecution v. Majewski15 :-

This is yet another landmark case relating to voluntary intoxication and plea of intoxication a
defence. It was said in this case that evidence of self-induced intoxication negates mens rea if the
offence is of specific intent. In Majewski what the house was dealing with was whether the
house could rely by way of defence on the fact that he had voluntarily taken drink. However
other doctors have suggested that the accused is held liable without the usual mens rea because
he has taken the drink and that in itself is the foundation of liability. Such an approach deems the
defendant‟s negligence in becoming voluntarily intoxicated his „prior fault‟ to be sufficient.
Mens rea for the crime. This is despite the fact that there is no contemporaneity between the fault
in becoming intoxicated and commission of actus reus of the crime. There has been an
alternative view in Majewski which holds that it does not create the rule of substantive law, but
one of evidence. A specific intent offence is one where evidence of voluntary intoxication
negativing mens rea is a defence and designation of crimes as requiring, or not requiring, specific
intent is based on no principle but on policy.16

c. (i) Law commission‟s analysis of Majewski:

The Law Commission, having surveyed the operation on the law on intoxication, considered
options for reform of law on the same. The Law Commission was left with two alternatives. First
that the Majewski distinction should simply be abolished without replacement. The effect of this
would be to return to established principles and to assert that the defendant should be acquitted if
he lacked the relevant mental element. The other alternative was to go ahead with the creation of
a new offense which the Law commission has preferred to do. It is submitted that going ahead
with the first reform is indicative of the fact that one is diluting the acknowledged policy that if a
defendant causes harm while intoxicated, some criminal sanction should be imposed, if only for
public safety. This might have been a reason for going for the next option. The option of creation
of a new offense has been recommended before by the Butler Committee and by a minority of
the C.L.R.C. The Law Commission‟s preferred option for reform is to punish those who cause
serious harm, while substantially and deliberately intoxicated, even though the defendant acted in
a state of automatism. Therefore, a possible reason for including automatism could be that if
such liability were excluded, then greater possibility of the defendant being acquitted under the
defense of involuntary intoxication arises. Thus, Law Commission‟s recommendation of the
creation of a new offense seems to be a preferred option as clearly an unqualified abolition of the
Majewski rule without replacement by another offense is not a practicable solution.

15
[1976] 2 All ER 142
16
Michael J. Allen, Textbook on Criminal Law, (London: Blackstone Press Ltd., 1999, 5th edn.)
 d) Foreseeability Test:

The presence or absence of liability may be said to rest on a foreseeability test. The fact that the
consumption of alcohol or the ingestion of drugs may cause loss of control is universal
knowledge. Thus, anyone who knowingly consumes such intoxicating substances is, at the very
least, committing a rash and negligent act averse to the possibility of losing control. One
therefore attracts the charge of deliberate intent by consuming substances known to lead to such
consequences. Moreover, loss of control may not be instantaneous and without symptoms.
However, combined with the issue of involuntary consumption, the position becomes quite
contentious. Even states with a strict liability offence excluding drunkenness as a defence
generally require prosecution of the person who laced the drinks without the knowledge of the
person who ultimately consumed it. This general rule may, however, open a Pandora's box with
convenient justification available even to such offenders who have only marginally exceeded the
prescribed alcohol limit for drivers. In most legal systems, therefore, involuntary loss of control
is restricted to cases where there is no real loss of control and in any case exists with noticeable
symptoms. Thus, for example, many states have prescribed a low threshold for the blood alcohol
level attracting the commission of an offence of driving under the influence of alcohol so that
people may be liable for exceeding the prescribed limit even without the tangible symptomatic
signs. More generally, this defence would not be available to people experiencing symptoms of
intoxication who continued to consume the laced drink since they are expected to be aware of the
consequences. Equally, they are expected to recognize that they are affected by an unknown
substance and resist from beginning an activity such as driving as this would fail to attract the
defence of involuntary consumption. The basis for law in this area rest on the principle of the
good of the general public as against the rights of an individual who recklessly exposes the
public to danger.17

e) Intoxication and defences:

i. Statutory defences: In cases where the statute expressly mentions that a
particular belief should be a defence to a charge the Majewski rule does not
apply. In English law, the controversial Jaggard v. Dickinson18 held that, for
the purposes of the statutory defence of lawful excuse, a drunken belief will
find the defence even though this allows drunkenness to negate basic intent.
This is limited authority and does not affect the generality of the defence. If the
accused in a state of intoxication believes a thing to be his own when it is
someone else‟s and destroys it this belief cannot claim a defence as this would
be considered an act of recklessness. However if the accused is under the

17
P.S.A. Pillai, Criminal Law, (New Delhi: Butterworths, 2000).
18
1980] 3 All ER 399.
 impression that the thing belongs to a third person and damages the thing with
the consent of the third person he is entitled to a defence.
ii. Common Law defences: The common law goes contrary to statutory defence.
Although it is now settled that when the accused sets up self- defence, he is to
be judged on the facts as he believed them to be, whether reasonably or not and
any mistake arising from voluntary intoxication cannot be relied on as a basis
for defence even on charge of murder or other crime requiring specific intent as
in the case of O’Grady.19 This was plainly obiter because the appellant had
been acquitted of murder and was appealing against his conviction for
manslaughter but in O’Connor20 the court, inexplicably treated it as binding
by quashing the conviction of murder on another ground. The dictum assumes
that if self- defence is a defence to murder it must also be a defence to
manslaughter, but this is not necessarily so because an act done in self-defence
arising from a grossly negligent mistake should be man slaughtered by gross
negligence.

f) Intoxication induced with the intention of committing crime:

The question arising here is whether a person has a defence if he voluntarily intoxicates himself
with the intention to commit a crime in a state of insanity? This concept is popularly known as
„Dutch Courage‟. The problem was brought to light in the case of A-G for Northern Ireland v.
Gallagher21 where the accused wanting to kill his wife bought a knife and a bottle of whisky. He
got drunk on the whisky and killed his wife. He took the defence of insanity due to intoxication
which had made him incapable of forming necessary intent at the time of the act. The court of
criminal appeal in Northern Ireland reversed the accused conviction from murder on the ground
that the judge had misdirected the jury in telling them to apply the M‟ Naughton rules,22 to the
accused state of mind at the time before he took the alcohol and not at the time of committing the
act.

19
1985 QB 995
20
1991 CLR 135
21
[1961] 3 All ER 299
22
The M'Naghten Rules are used to establish insanity as an excuse to potential criminal liability, but the definitional
criteria establish insanity in the legal and not the psychological sense
 INTOXICATION AND CONCURRENCE

a) Intoxication causes automatism: The accused in a drunken state suffers concussion and
commits an offence in a state of automatism resulting from the concussion. In Stripp,23 the court
decided that the accused should be acquitted on grounds of automatism since intoxication was
too remote from the act. The law commission held that the case suggests the possibility that
where there is a course of automatism clearly separable in time or effect from the intoxication
and supported by a foundation of evidence, then a defence of automatism may be available, but
when causal factors are less easily separable it would seem that the presence of the intoxication
will be on policy grounds lead to adoption of Majewski rule to exclude reliance on automatism.

b) Insanity causes intoxication or automatism: Insanity mentioned here doesn‟t apply to

McNaughton rules as here insanity relates to a particular criminal act, whereas getting drunk or
causing oneself concussion is probably not a criminal act at all and certainly not concerned with
the Indian Penal Code.24

CONCLUSION

In different times and in different societies, the response towards public drunkenness has been on
a scale of diametrically opposite attitudes. While certain cultures and societies have accepted
alcohol consumption or drug-taking as a part of their religious or social rites, such behavior has
attracted an entirely contrary response extending to its denigration as immoral and sinful. The
norms of propriety have therefore always been dynamic and modern law has therefore
appropriately steered clear of reflecting these wavering standards and criminalizing intoxication
per se but by adopting the more neutral standards based on whether an act arising from
intoxication was voluntary or involuntary. The viability of any defence of a criminal act
therefore rests on a combination of the voluntary vs. involuntary principle and the universal
knowledge that consumption of intoxicants is likely to induce loss of control. The evolution of
law in this area reflects a careful application of these standards.

23
(1979) Cr. App R 318
24
K.D.Gaur, Criminal Law: Cases and Materials, (New Delhi: Butterworths, 1999).
 BIBLIOGRAPHY

1. https://www.legalserviceindia.com/legal/article-6628-intoxication-as-a-defence-under-
ipc.html
2. https://blog.ipleaders.in/intoxication-defence-indian-penal-code-1860/
3. https://www.law.cornell.edu/wex/intoxication
4. https://www.mncrimdefense.com/but-i-was-drunk----intoxication-as-a-defense
5. Gough, S. (2000) Surviving without Majewski? Criminal Law Review, (Sep.), pp. 719–
733.
6. Law Commission (1992) Intoxication and Criminal Liability. Consultation Paper No.
127, London: Stationery Office.
7. Abdul Aziz bin Mohamed Shariff v PP [2010] 6 MLJ 759
8. Francis Antonysamy v PP [2005] 2 CLJ 481
9. Hamdan NN, “Can Intoxication Become Defense?”. Retrieved from
<https://www.researchgate.net/publication/313503114_Can_intoxication_become_defens
e> accessed December 2, 2019