Q. Critically Evaluate the Defences of Mistake and Intoxication.

A. Whether or not error should be considered a defence type in and of itself is a topic of fierce debate.
In DPP v. Morgan, Lord Hailsham made a point of highlighting this. Accord to Herring:
“Rather, a mistake can be a particular way of denying that a defendant has mens rea or asserting that
the defendant has a defence such as self-defence.”
However, Smith & Hogan expressed the opinion that the "landmark" judgement of Morgan solidified the
idea that a mistaken belief is a defence when it keeps the accused from possessing the mens rea that
the law demands for the offence for which he is accused. Depending on the conditions of the offence,
the way that error operates as a defence will change. Therefore, where recklessness or purpose is
necessary, error may serve as a defence; yet, where simply negligence is required, only a reasonable
mistake may serve as a defence because a reasonable man would not, by definition, make a mistake.
A mistake might invalidate mens rea. The error would constitute a defence to murder if a defendant
really thought he was killing a fox but inadvertently discharged a bullet that struck a hunt saboteur, who
later succumbed to his injuries. This is not to claim that error itself serves as the defence; rather, mens
rea deficiency serves as the defence in this case. On the other hand, there are instances where a mistake
has been made yet the mens rea is still there. The fact that the hunt saboteur accidentally shot a
bystander in a pink jacket when he was aiming for the Master of Hounds would not help in defence
because there was already a premeditated plan to kill the individual.
It is possible for a mistaken belief to serve as the foundation for a defence. For example, if a huntsman
stabbed himself to death because he honestly thought a saboteur was about to murder him, the error
would be obvious. However, the self-defense argument would have been justified. Law blunders may
occur, however the dictum ignorantia legis haud excusat (ignorance of the law is no excuse) will still be
in effect. Because of this, if a huntsman made a mistake and continued to hunt with hounds while really
believing it to be permissible due to propaganda by the Countryside Alliance, the error would not
provide a defence. Overall, Smith & Hogan's position can be contested because it can be shown that in
every situation where a mistake results in the commission of an offence, a defence is available on
grounds unrelated to the mistake itself. This is true even though mistakes are still a common category in
criminal law textbooks.
Contrarily, Smith & Hogan claim that "intoxication is not, and never has been, a defence in itself" (p. 239
of their publication). The Kingston case, in which the defendant engaged in pedophilic behaviour while
inebriated, is a notable example of drunkenness. He acknowledged having these inclinations but insisted
that he typically managed to control them. According to the Court of Appeal, if drugs were covertly
given to a person who was afterwards made to lose his inhibitions and develop an intent that he would
not have otherwise had, this was not criminal intent. To the House of Lords, this was "a bridge too far,"
and Lord Mustill reiterated the rule that there is no defence if a person had the required mens rea for an
offence but only did it because he was involuntarily drunk.
According to Beard, intoxication could only be used as a defence if it prevented the defendant from
having the required mens rea. The landmark judgement of Majewski, in which the House of Lords ruled
that self-induced drunkenness may only be used as a defence against crimes requiring specific intent,
followed this. The so-called "Majewski Rule," however, has been determined to be inapplicable non
cases when the law specifies that a certain belief may serve as a defence. For instance, the Criminal
harm Act of 1971's section 5(2) states that a person's opinion that they would consent to harm serves as
a defence against criminal damage. Thus, in Jaggard v. Dickinson, the defendants committed criminal
damage while breaking into a home that the plaintiff believed, while intoxicated, belonged to a friend
who would have approved of her entry in this manner.
The defendant was not able to use her intoxication as a defence since the crime of criminal damage
does not need specific purpose; nonetheless, it was still accepted as an explanation of the defendant's
mindset while mounting the statutory defence under the Act. The Jaggard court was cautious to draw a
distinction between permitting the defence to proceed in this manner and allowing drunkenness to be
used as a defence against purpose or carelessness. It would seem that this is a distinction without a
difference, even though it can be supported by a strict interpretation that relies on the unique legislative
defence afforded by s. 5(2).
But once more, it is clear from the aforementioned illustrations that when the topic of drunkenness is
brought up, the attention is not on intoxication as a defence (or lack thereof) in and of itself, but rather
on whether the element of intoxication is capable of negating the necessary mens rea. It must thus
remain incredibly unlikely that mistakes and drunkenness are defences in and of themselves, even if
they are both well-known subsets of the general word "defence." To be fair, though, if this approach
were to be applied to a lot of other types of so-called defence, such provocation, duress, and lessened
culpability, the same critique may be directed. Therefore, it could be more fruitful to ask if mens rea is
present in practically every situation rather than trying to "pigeon-hole" the circumstances of a
particular case into one or more of the defences that the writers of the Criminal Law books so dearly
cherish.
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