INTOXICATION RELEVANT TO MISTAKE

In many of the cases where intoxication is relevant the plea in substance is one of mistake
and the evidence of intoxication is circumstantial evidence that the mistake was made. Two
examples of lord denning are :- 1) where a nurse got so drunk at a christening that she put the
baby on the fire in mistake for a log of wood . 2) where drunk amn thought his friend lying
in bed was a threatical dummy and stabbed him to death. Lord denning said there woud be a
defence to murder n each of these cases. These mistakes were higly unreasonable and in the
case of a sober person, it would unlikely that a jury would believ that they might have been
made.the relevance of the evidence of intoxication is simply that it makes these mistakes
more credible1

To establish mistake intoxication may cause on grounds slighter than could be expected to
lead a sober man to the same erronoues conclusion such as mistake of fact as is incompatible
with criminal liability2

Earlier drunken mistakes are are generally no defence to basic intent. In case R vs
fotheringham 3 the appellant had been drinking.he climbed into bed with the 14 year old
babysitter who sleeping in the matrimonial bed.he started to have sexual intercourse with her
in the mistaken belief that it was his wife.he was convicted for rape and it was held that His
conviction for rape was upheld. Rape is a crime of basic intent and therefore his drunken
mistake could not be relied on in his defence. Under sec 5(2) of the CriminalDamage Act
1971 provides that a belief that a person would consent to damage is a defence to criminal
damage.

In Jaggard v Dickinsons case 4 the appellant had been out drinking for the evening and
became stranded with no money or lift home. She went to a friends house and knocked on
the door. There was no answer, so believing her friend would consent in the circumstances,
she broke into the house. In fact the house did not belong to her friend. It was held that the
majewski rule that a person can not rely on a mistake induced by voluntary intoxication
where the crime is one of basic intent does not apply where the defendant is relying on the

1
Smith and Hogans criminal law by david omerod, karl laird, john Cyril

2
Kennys outline of criminal law

3 (1989) 88 Cr App R 206

This is limited authority and does allows drunkness to negate basic intent. This is limited
authority and does not affect the generality of defence. If the accused is in the state of
intoxication a thing to be own when its is someone else and destroy it this cannot claim a
defence as this would be considered an act of recklessness. However if the accused is under
the 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 defence5.

SELF DEFENCE

When a defendant mistakenly acted in self defence but induced by intoxicated state , self
defence will be no defence.

Where a defendant is labouring under a mistaken belief that they are under attack and acting
in self-defence, they can not rely on such mistaken belief where it was induced by voluntary
intoxication. This applies to crimes of both basic intent and specific intent. In R v O'Grady 6
the appellant was an alcoholic. He had spent the day drinking large quantities of alcohol with
two friends. The friends then retired to the appellant's home and went to sleep. The appellant
claimed he was woken by one of the friends, McCloskey, hitting him on the head. He said
that he picked up some broken glass and started hitting McCloskey in order to defend
himself. He said he only recalled hitting him a few times and a fight developed during which
McCloskey had the better of him throughout. He said the fight subsided and he cooked them
both a chop and went to sleep. In the morning he found McCloskey dead. His death was
caused by loss of blood. He had 20 wounds to his face, in addition to injuries to the hands and
a fractured rib. There was severe bruising to the head, brain, neck and chest. There was a
fracture of the spine caused by the head being forced backwards. There was a fractured rib.
The blows to the body had been delivered by both sharp and blunt objects. The trial judge
gave the following direction in relation to self-defence:

5
Intoxication as defence by pushkar thakur
6 [1987] QB 995
"It might be a view that you might take -- I know not -- that this defendant thought he was
under attack from the other man mistakenly and made a mistake in thinking that he was under
attack because of the drink that was in him. If he made such a mistake in drink he would
nevertheless be entitled to defend himself even though he mistakenly believed that he was
under attack. He would be entitled in those circumstances to defend himself. But if in taking
defensive measures, then he went beyond what is reasonable either because of his mind being
affected by drink or for any other reason, then the defence of self-defence would not avail
him because, as I told you earlier on, you are entitled to defend yourself if it is necessary to
do so, but the defensive measures that you take must be reasonable ones and not go beyond
what is reasonable."

The jury convicted him of manslaughter and he appealed contending:-

(1) Whilst the Judge was correct to refer to mistake induced by drink in connection with self-
defence, he was wrong to limit the reference to mistake as to the existence of an attack; he
should have included the possibility of mistake as to the severity of an attack which was the
most likely possibility on the facts.

(2) By leaving the matter to the Jury as he did, the Judge in effect divorced the
reasonableness of the appellant's reaction from the appellant's state of mind at the time.

(3) The Judge failed when giving his further direction to the Jury to remind them that a
defendant is never required to Judge to a nicety the amount of force which is necessary and
that they should give great weight to the view formed by the appellant at the time, even
though that view might have been affected by alcohol.

it was held that the appeal was dismissed and the appellant's conviction upheld. A defendant
is not entitled to rely, so far as self-defence is concerned, upon a mistake of fact which has
been induced by voluntary intoxication.

Lord Lane CJ: "There are two competing interests. On the one hand the interest of the
defendant who has only acted according to what he believed to be necessary to protect
himself, and on the other hand that of the public in general and the victim in particular who,
probably through no fault of his own, has been injured or perhaps killed because of the
defendant's drunken mistake. Reason recoils from the conclusion that in such circumstances a
defendant is entitled to leave the Court without a stain on his character.

R v Hatton 7 , the appellant battered Richard Pashley to death with a sledgehammer after
consuming a large quantity of alcohol. Mr Pashley was 49. He suffered from manic
depression and was prescribed Lithium to control disinhibition he experienced when in a
manic state. On the day of his death he had not taken his Lithium and had twice the legal
limit of alcohol in his blood. He had been behaving in a strange fashion, falsely representing
that he had been an officer in the SAS and striking martial art poses. He had exhibited a
hatred of homosexuals. The appellant and Mr Pashley did not know one another, but met in
the early hours of 22 June in a nightclub. From there they drove together in the appellant's car
to his flat. The appellant called the police the following morning and stated there was a dead
man in his flat. The appellant had no recollection of the actual killing but stated he vaguely
remembered being hit with a stick. A five foot stick had been found underneath the deceased.

The defence counsel wished to suggest to the jury that, if the appellant killed Mr Pashley, he
might have acted in self-defence. Mr Pashley might have attacked him with the stick, perhaps
under the erroneous impression that the appellant was a homosexual, and that the appellant
might have used the sledgehammer to defend himself. For this defence to succeed, however,
the jury would have to be persuaded that the use made by the appellant of the sledgehammer
was or might have been a reasonable reaction to the suggested assault by Mr Pashley. The
defence counsel wished to argue that the appellant's drunken state might have led him to
believe, mistakenly, that Mr Pashley was an SAS soldier attacking him with a sword. In the
absence of the jury he sought a ruling from the judge that the reasonableness of the
appellant's reaction fell to be judged according to the facts as he believed them to be, even if
that belief was mistaken and the mistake was caused by the drink that he had consumed. The
judge ruled that this could not be put before the jury. The jury convicted him of murder. The
appellant appealed challenging the correctness of the decision in O Grady that a defendant's
drunken perception of events can not be relied on in the context of self-defence.

it was dismissed. The appellant's conviction upheld. The established in R vs grady that a
defendant's drunken mistake can not be relied on for the purposes of self-defence affirmed.

7 [2006] 1 Cr App R 16
In relation to common law defence the law has gone quite the other way. It is now settled that
in case of Gladstone Williams8 the defencdent set uo in self defence, he is to be judged on the
fact as he believed them to be whether reasonably or not. A misatake arsing from voluntary
intoxication cannot be relied on according to Ogrady9 and was plainly obiter because the
appellant had been acquitted for murder and was appealing against his conviction for
manslaughter but in Oconnor 10 case the court inexplicably treated it is binding while
quashing the conviction of murder on the other ground . this was followed in R vs hatton.
Hatton had drunk more than 20 pints of beer killed V with atkeast seven blows from
sledgehammer. H stated that he could not recall Vs death but he had the stick fashioned in
the shape of a samurai sword had been involved. H said that he believed that V had hit him
with thw stick and that must have believed that V was attacking him. H wished to raise self
defence based oon his own mistaken belief that he thought he was being by SAS officer ( as
V had earlier pretended tobe ) with asword . the court of appeal upholding his conviction
confirmedthat the decision in Ogrady case applied equally to caese of manslaughter and
murder , a defendent seekig to rely on self defence could not rely in a mistake induced by
voluntary intoxication. The case is controversial that the decision in OConnor and Ogrady
were binfing (but not implicating feeling bound by Gladstone Willliams)

This approach is flawed is a a number ways. First it contradicts the approach taken in relation
to mistake in self defence . if D has made a genuine but unreasonable mistake as to the need
for force , he will judged on the facts as he reasonably believed them to be . if this is so when
D is sober surely it ought to be when he is intoxicated since his intoxication explains the basis
for the reasonable ness of this mistake . secondly it is inconstitent with the application of the
rules relating to specific and basic intent for offence. If D is charged with murder and pleads
that he was too intoxicated to know what he is doing , he is , if believed, entitled to an
acquittal on that specific intent charge . he will be convicted of manslaughter by gross
negligence if the jury judge his reasonable mistake as to the need for force as a grossly
negligent mistake ( which a druken mistake is almost certainly is ).

8
[1987]3 All ER 411, 78 Cr App R 276

9
10
If self defence is a defence to murder it does not necessarily follow that it needs to be a
defence to manslaughter . the court of appeal, in a purely policy driven series of driven series
of decisions has created inconstitencies in an attempt to ensure that D cannot plead
intoxicated defence : the baisi for this seems to be fear that junors would acquit of all
offences. These decision are difficult to defend. The courts attention does not appear to have
been drawnto the recommendation of the criminal law revision committte which complement
those which the court followed in gladston William . the more logical view it is submitted is
that a mistake arising from voluntary intoxication by alcohol or dangerous drugs may
founf=d as a defence to crime requiring specific intent but noyt to one of basic intent if the
prosecution prove that but for the intoxication ththe defencdent would have mistake11 .

11
Smith and Hogan by