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Case of Reniger v Fogossa in 1552

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    As members of society we would like to believe that just because one is intoxicated while they committed a criminal offence, that this would not mitigate their guilt. In the case of Reniger v Fogossa in 1552 it was stated that, ‘if a person who is drunk kills another this shall be a felony… and yet he did it through ignorance, for when he was drunk he had no understanding nor memory; but in as much as that ignorance was occasioned by his own act and folly, it shall not be privileged thereby.

    In the modern age, the increasing amount of crimes being committed while one is intoxicated has resulted in the law tightening the scope on the issue. It has created rules to attempt to strike a balance between imposing criminal liability on the accused that had no mens rea, while trying to protect the public from those who deliberately took something to put them in a condition where they could not control their actions. Public policy is a strong factor in determining whether the defendant’s intoxication can be used to negate the mens rea of a crime.

    When the accused uses alcohol or drugs to make carrying out the crime easier for them, there is no defence of intoxication available. In Attorney General for Northern Ireland v Gallagher, Gallagher was charged with murdering his wife. He made the decision to kill his wife while he was sane and sober and subsequently drank a bottle of whiskey to get so called ‘dutch courage’. At the time of the killing however he lacked the mens rea to commit the crime as he was drunk. This meant that the actus reus and the mens rea did not coincide at the time of the killing.

    Despite this, the House of Lords found the accused to be guilty. Lord Denning stated that, “he cannot rely on this self-induced drunkenness as a defence to a charge of murder… the wickedness of his mind before he got drunk is enough to condemn him, coupled with the act which he intended to do and did do. ” The basic rule for what amounts to a state of intoxication was established in DPP v Beard, in which Lord Birkenhead LC concluded that intoxication can be a defence where the accused was, at the time of the offence, so drunk as to be incapable of forming the specific intent necessary to commit serious crimes.

    However this can only operate as a defence to an offence if it negatives the intent. Before and since Beard, judges had taken the view that self-induced intoxication, however gross, cannot excuse crimes of basic intent. The intent for a crime to be committed while intoxicated has been divided into two in the case DPP v Majewski; specific intent and basic intent. DPP v Majewski was focused around a defendant who was charged with three counts of assault occasioning actual bodily harm and three counts of assault on a constable in the execution of his duty.

    He wanted to rely on intoxication as a defence as he had consumed large quantities of alcohol and drugs at the time of the assaults. The trial judge directed the jury that self-induced intoxication was not available as a defence to these ‘basic intent’ crimes and distinguished between them and ‘specific intent’ crimes. Lord Elwyn-Jones LC referred to Beard as an example of ‘specific intent’ and the current case as ‘basic intent’ in regards to the defendant’s recklessness in becoming intoxicated being substituted for the mens rea that the prosecution would otherwise have to prove.

    The ‘Majewski’ rule has not been followed in many countries. In the High Court of Australia, the distinction between basic and specific intention was rejected in R v O’Connor. The defendant was accused of stealing from a police car and stabbing a policeman in his pursuit from the car. He claimed to have taken alcohol and drugs and to have no recollection of the incident. He was convicted of murder and his appeal was allowed on the ground that the judge failed to direct the jury that voluntary drunkenness could have the effect of preventing the defendant from forming the specific intent that is an element of the crime of murder.

    This follows a logical argument. Barwick CJ effectively rejected the ‘Majewski’ distinction and held that intoxication can be a defence to all types of crime. This can be seen to be radical compared to the stance taken by the Irish and English courts. In contrast to the English decisions, only recently have the Irish courts delivered a decision on the issue of intoxication in criminal law. Instead of creating a different opinion than the English, like the Australians, Ireland adopted the same logic in DPP v Reilly.

    In this case the accused stabbed his cousin’s 18-month-old child after a heavy night of drinking but ad no recollection or intention to kill or cause serious injury. McCracken J, in coming to a conclusion, cited Majewski;“if a man by his own violation takes a substance which causes him to cast off the restraints of reason and conscience, no wrong is done by holding him answerable criminally for any injury he may do in that condition. ” This harsh verdict upheld that the recklessness in intoxicating oneself, causes the recklessness of intent in carrying out an offence and one can be held liable for committing such a crime in this case.

    This rule now firmly incorporated into Irish case law. This has been severely criticised by namely Keith Spencer in his article ‘The Intoxicated Defence in Ireland’, where he suggests that the Court of Criminal Appeal allegedly adopted Majewski to restore public order and to protect society while actually only following a popular and convenient public policy. Intoxication can be due to alcohol as well as other drugs, as held in R v Lipman. In this case the defendant attempted to use the defence of intoxication after voluntarily consuming LSD and while hallucinating, killed his girlfriend.

    He claimed to have had no knowledge of what he was doing and no intention to harm her. However, this defence was rejected. Widgery LJ held, “we see no reason to distinguish between the effect of drugs voluntarily taken and drunkenness voluntarily induced. ” In regard to involuntary intoxication, it has a narrow stance, but is more likely to be accepted as a defence than voluntary intoxication. R v Pearson held that, ‘if a party be made drunk by the stratagem or fraud of another, he is not responsible’. However this does not apply when someone is voluntary drinking alcohol but does not know strong it is.

    It also is not applicable where someone unknowingly becomes intoxicated but still has the intention. This can be seen in R v Kingston, where a third party tricked the defendant into sexually assaulting a young boy by drugging the defendant and luring a boy to his apartment. Here the defence of intoxication was rejected as the defendant had prior intention as he had paedophilic tendencies.

    In 1995 the Law Reform Commission made suggestions to the legislature in its ‘Consultation Paper on Intoxication as a Defence to a Criminal Offence’ on he issue. They came to the conclusion that voluntary intoxication is not a defence, but that involuntary intoxication would always be a defence; whereby involuntary also meaning taking it for medical purposes and not realising some of the side-effects, or took the prescribed dosage and the side effects ensued. They reluctantly agreed to preserve the ‘Majewski’ rule after admitting that they found the different definitions of it confusing, suggesting that it be simplified to remove the distinction between basic and specific intent.

    They recommended that specific offences for intoxication be created. The idea of that is quite difficult to understand, in that it would be hard to set a maximum sentence as the facts and intentions in each case can vary extremely. However he might be more fairly labelled if he was convicted of an intoxicated wrongdoing offence, rather than of the crime corresponding to the actus reus he later commits. However voluntary drunkenness is not in general, itself a cause of violence. Becoming drunk must be shown to be a wrong and not merely because things turned out badly.

    The intoxication doctrine has been interpreted in different ways but it is quite clear that, disregarding penal codes, intoxication is never a defence, as it is dealt with by the prosecution when proving the mens rea, it operates for the benefit of the prosecution, not the defence. The sole function of the doctrine is to treat the defendant as if he acted with mens rea when, in fact, he did not. Punishment in an ethical legal system is not based simply on the harm done but on proof of actus reus, mens rea and causation.


    1. Gough, S. , ‘Surviving without Majewski? ’ [2000] Crim LR 719-733
    2. Spencer, K. , ‘The Intoxicated Defence in Ireland’ (2005) 15(2) ICLJ 2
    3. Dillon, M. , ‘Intoxicated Automatism is No Defence’ (2004) 14 ICLJ 7-15
    4. AP Simester, ‘Intoxication is never a defence’ [2009] CLR Books
    5. McIntyre, McMullan an O’Toghda, ‘Criminal Law’ (Thomson Reuters 2012) * Hanly, ‘An Introduction to Irish Criminal Law’ (Gill & Macmillian, 2006)

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