Court’s Direction on Self-Induced Intoxication
When is it necessary for a court to give a direction on the relevance of self-induced intoxication?
The Court of Appeal was concerned that the present state of authorities was likely to create uncertainty, and practitioners may care to read in full the judgment handed down yesterday: Kinse Aidid v The Queen [2021] EWCA Crim 581: Fulford LJ, VP, Dove, Butcher JJ
The position was straightforward if the accused’s case was that he or she was too drunk to know what he or she was doing and had not formed the necessary intent. A direction was then clearly necessary.
The difficulty arose when it was not part of an accused’s case that as a result of intoxication he or she was incapable either of forming the relevant intent or knowing what he or she was doing.
In those circumstances, there was tension in the jurisprudence. One line of authority[1] tended to suggest that when the accused had not given his explanation or, alternatively, if self-induced intoxication had not been raised as a live or a concrete issue in the case, then the direction need not be given.
On those authorities, it would appear that the potential significance of clear evidence of varying degrees of drunkenness or the effects of drugs may be neutralised by the accused’s case that he or she had sufficiently known what they were doing (for instance, by acting in self-defence) thereby rendering a direction unnecessary.
Another line of authority[2] indicated that if there was evidence of drunkenness/intoxication which might give rise to an issue as to whether specific intention could be formed by the accused, a direction should normally be given to the jury that (i) a drunken intent was nevertheless an intent, but (ii) that they had to feel sure, having regard to all the evidence, that the defendant had had the intent.
In those five authorities, the court reached that conclusion even though it was not the accused’s defence that he or she had been so affected.
The court determined a direction, nonetheless, should have been given, leaving it for the jury to decide, on the basis of their conclusions on the evidence, whether intoxication may have resulted in the accused not having the necessary intent.
The Court of Appeal considered that the judge must avoid conjuring fanciful factual scenarios, but if there was sufficient evidence as to the consumption of alcohol or drugs such as to make it, viewed realistically, a potential issue as regards intent, then regardless of the nature of the accused’s defence, in its judgment the correct position was described by Waller LJ in Groark: “If there is evidence of drunkenness which might give rise to an issue as to whether specific intention could be formed by the accused a direction should normally be given to the jury that a drunken intent was nevertheless an intent, but that they had to feel sure, having regard to all the evidence that the defendant had had the intent.”
Or, as the court observed in Bennett, “Voluntary intoxication had to be treated like any other evidence which tended to show the defendant may have lacked the state of mind necessary to support the offence.”
What are the essential elements of a direction on the effect of intoxication on the defendant’s intent?
The answer was long established and uncontroversial. In R v Sheehan and Moore Lane LJ set out how judges were to direct the jury ‘where drunkenness and its possible effect on the defendant’s mens rea was in issue, which was conveniently set out in the headnote:
“The proper direction now is, first, that the mere fact that the defendant’s mind was affected by drink so that he acted in a way in which he would not have done had he been sober does not assist him at all, provided that the necessary intent was there, for a drunken intent is nevertheless an intent; secondly, the jury should be instructed to have regard to all the evidence, including the evidence relating to drink, to draw such inferences as they think proper from the evidence, and on that basis to ask themselves whether they feel sure that at the material time the defendant had the requisite intent.”
The Vice-President said the Court entirely supported the general approach taken by the editors of the Crown Court Compendium of breaking down complex legal directions into a series of short questions, which needed to be answered in a logical order.
As a general approach, the Court deprecated the use of footnotes in the typed directions in law used by the judge in the instant case. Jurors would not necessarily be familiar with reading important information in that way.
What are the consequences of not giving a direction when one is considered to have been necessary?
Whenever the effect of intoxication was an issue in the case, it would be part of the judge’s duty to give a direction of the kind referred to, whether or not this step was strictly, as Leggatt LJ described it ‘beyond the essential role of the judge.’
Failure to give the direction or to deliver it precisely in conformity with the formula set out by Lane LJ in Sheehan and Moore, may not necessarily result in an unsafe verdict. It would depend on all the evidence and the issues in the case, along with the directions otherwise given by the judge.
[1] McKnight (Court of Appeal (Criminal Division) transcript of 19 April 2000, Alden and Jones [2001] EWCA 3041, White [2017] NICA 49, Ward [2018] NICA 40 and Campeanu [2020] EWCA Crim 362
[2] Sheehan and Moore (1974) 60 Cr App R 308, Bennett [1995] Crim LR 877, Brown and Stratton [1998] Crim LR 485, Groark [1999] Crim LR 669 and Mohamadi [2020] EWCA Crim 327