Same Problem, Same Solution? The Treatment of the Voluntarily Intoxicated Offender in England and Germany

AuthorBrian Foley
PositionJunior Sophister Law Student, Trinity College, Dublin
Pages119-140
SAME
PROBLEM,
SAME
SOLUTION?
THE
TREATMENT
OF THE
VOLUNTARILY
INTOXICATED
OFFENDER
IN
ENGLAND
AND
GERMANY
BRIAN
FOLEY*
Introduction
In
a
legal
system
that
has
evolved
beyond
holding
a
person
absolutely
responsible
for
their
actions,
the
position
of
the
voluntarily
intoxicated
offender causes
difficult
and
complex problems. When
a
system
recognises
that
something
more
than
a
physical
act
is
required
to
attract
the
sanction
of
the
criminal
law
it
will
generally look
to the
mind
of
the
accused
in
order
to
decide
whether
the act
is
punishable.
Intoxication
poses
particular
problems
because
it
can
result
in
an
inability
of
the
accused
to
form
such
a
state
of
mind, and
so
escape punishment,
when
the
person
commits what
would otherwise
be a
crime.
It
is
undisputed
that
the
intoxicated offender
causes
harm
to
others.
Society,
as
interpreted
through
the
courts,
demands
protection
against
such
harm.
Therefore,
while the
demand
for
a
mental
element
may
seem
to
lean
in
favour
of
the
intoxicated
offender,
since
intoxication
will
impair
such, practical
and
utilitarian
concerns lean
the
other
way.
Otherwise
the criminal
justice
system
would
be
seen
to
be
failing
in
the eyes
of
the
public
if
it
were
to
let
an
intoxicated
offender
go
free,
while
punishing
a
sober
one.'
In
attempting
to
deal
with
this
problem,
support
has
often
been
2
voiced
for
the
provision
of
an
offence
of
dangerous
intoxication, like that
*
Junior Sophister
Law
Student, Trinity
College,
Dublin.
I
would
like
to
thank
Benedikt
Fischer
of
the
Addiction Research Foundation
of
Canada
for
his
assistance
in
providing
information
on
the German
Legal
System.
I
am
also
indebted
to
Rudiger
Tscherning
for
his
invaluable
translation assistance
and
also
to
Dr. Neville Cox
for
his
helpful
comments
on
an
earlier draft.
See for
example
the
introduction
to
the
Victoria
Law
Reform
Committee,
Inquiry into
Criminal Liability
for
Self-Induced Intoxication
(Government Printer,
1999).
This
review
of
the
law was
in
response
to
public
perception
of
its
failure when
a
rugby
player
was
acquitted
of
charges
of
assault
towards women
on
the
basis
of
intoxication
evidence.
2
In
1975
the
Butler
Committee, (Butler
Committee,
Report
of
the Committee
on
Mentally
Abnormal
Offenders
(Her
Majesty's
Stationary
Office,
1975),
at 235-237),
recommended
the
creation
of
a
special statutory
offence
of
committing
a
dangerous
act
while
intoxicated.
In
©
2001
Brian
Foley
and
Dublin University
Law
Society
Trinity
College
Law
Review
[Vol.
4
which
has
found
favour
within
§323a
of
the German
penal
code.
Given
that
neither
the
Irish courts
3 nor
legislature
have yet
comprehensively
considered
the
position
of
the
intoxicated offender
the
ultimate
aim
of
this
paper
is
to
query whether
enactment
of
a
special
offence
similar
to
the
German
model
in
preference
to
approval
of
the
Majewski
principle
is
a
desirable
step.4
This
article
will attempt
to
argue
that
despite
provision
of
such
an
offence,
the
approach
of
the
German
system
to
the
problem
of
the
intoxicated
offender
is,
in
the
ultimate analysis,
very
similar
to the
English
approach
found
in
Majewski.
5
Essentially,
despite
the
apparent
wide
embrace
of
the
§323a
offence,
it
will
not
punish
all
intoxicated
crimes
and
liability
will
only
be
imposed
in
both
jurisdictions for
acts
of
an
identical
character, those which
may
be
classed
as
acts
of
low
sophistication.
6
The
English
Law
The common
law
in
a
discrete
area
often
owes
a
great deal
to
its
history,
and
this
is
certainly
true
of
the
intoxication rules.
The
current
complexity
and
internal
illogic
of
Majewski
should
not really
come
as
a
surprise
when
1980, a
minority
of the
Criminal
Law
Revision
Committee
agreed
with
the
Butler Committee
that
there
should
be
a
special statutory
offence,
but
felt
that
aspects
of
the
Butler
Committee's
proposed
offence
should
be
changed.
See
Criminal
Law
Revision
Committee,
Offences
Against
the
Person
(Her
Majesty's
Stationary Office,
1980).
See
also
Ashworth,
"Reason,
Logic
and
Criminal
Liability"
(1975)
91
LQR
102,
at
117-118;
Bugg,
"Intoxication
and
Liability:
A
Criminal
Law
Cocktail"
(1985)
Auckland
ULR
144;
Quigley,
"Reform
of
the
Intoxication Defence"
(1987)
33
McGill
LJ 1,
at
30-47;
Skene,
"Drugs,
Alcohol
and
Crime"
(1986)
5
Australian
Drug and
Alcohol
Review
279;
Lord
Elwyn-Jones L.C.
(at
475)
and
Lord
Edmund-Davies
(at
496)
in
Majewski's
case
supported
the
creation
of
a
separate
statutory
offence.
See
also,
in
relation
to
Canada,
Mr
Justice
Dickson
(dissenting)
in
R
v.
Leary
(1977)
33
CCC
(2d)
472,
at
495
and
again
in
his
dissenting
judgment
in
R
v.
Bernard
(1988)
CCC
(3d)
1,
at
18.
3
Intoxication
was
referred
to
in
People
(AG)
v.
Manning
155,
but
the
case
is
rarely
cited
as
authority
for
a
general
treatment
of
the
intoxicated
offender. Indeed,
in
the most
recent
textbook
on
Irish
criminal
law,
McAuley
and
McCutcheon's
Criminal
Liability,
A
Grammar
(Round
Hall Sweet
and Maxwell,
2000),
Irish
authority
warrants
only
half
a
page
out
of
an
intoxication chapter
of
fifty-seven pages.
The
topic
has
been
the subject
of
a
report
by
the
Law
Reform Commission,
Consultation
Paper
on
Intoxication
as
a
Defence
to
a
Criminal
Offence,
(Law Reform Commission,
1995).
4
It
may
be
preferable
to
allow
such
a
defence,
as
has been
done
in
Australia. See R.
v.
O'Connor
(1979)
ALR
449. The
concern
of
this paper however,
is
solely
on
a
choice
between
two approaches
that deny
a
general
excuse
on
the basis
of
intoxication.
The
exclusion
of
such
a
defence
is
favoured
in the
recommendations
of
the Law
Reform
Commission,
ibid,
at
11.
5
DPP
v.
Majewski
6
This
term
is
chosen
here
over
'basic
intent'
to
avoid
the
problems
of
definition
of
that
term.

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