International Journal of Law and Legal Jurisprudence Studies

Intoxication as a Defence in Criminal Law – can ‘intent’ be inferred in Voluntary Intoxication-Jinal Dadiya,( 4th year )National Law School of India University

Abstract:

Under Common Law, it is not merely Intoxication, but the ‘Inability to form Intent as a result of Intoxication’, which forms a legal defence against conviction for the commission of a criminal offence; a position which has been upheld by the supreme Court in the landmark judgement of Basdev v.State of Pepsu. This position of law has been widely criticized, and several opinions suggest (including the 42nd Law Commission of India) that in the interest of Public Defence, Intent, like Knowledge in s. 86 of the Indian Penal Code, 1860, should be presumed in cases of voluntary intoxication. This paper attempts to analyze this claim from the perspectives of Public Defence, and the Principles of Contemporaniety and Legitimate Criminalisation.

Under Common Law, it is not merely Intoxication, but the ‘Inability to form Intent as a result of Intoxication’, which forms a legal defence against conviction for the commission of a criminal offence; a position which has been upheld by the supreme Court in the landmark judgement of Basdev v. State of Pepsu.[1] This position of law has been widely criticized, and several opinions suggest (including the 42nd Law Commission of India[2]) that in the interest of Public Defence, Intent, like Knowledge in s. 86 of the Indian Penal Code, 1860, should be presumed in cases of voluntary intoxication. This paper attempts to analyze this claim from the perspectives of Public Defence, and the Principles of Contemporaniety and Legitimate Criminalisation.

‘The inability to form intent as a result of intoxication’ as an Excuse

In order to understand the exact scope, extent and nature of the defence of intoxication it is essential to ascertain its legal position and status. In this regard, it is imperative to establish whether voluntary intoxication serves as a legal Excuse or a justification.

Professor George Fletcher in his iconic work, Rethinking Criminal Law[3] explained the concepts of Justification and Excuse, highlighting the differences between the two and showing how in certain cases it may be difficult to practically differentiate how either has been used. While a justification “speaks to the rightness of the act; an Excuse, to whether the actor is accountable for the concededly wrong act”[4] While both Excuse and Justification are Defences, an Excuse does not deny, at any level, the wrongness of an act, but merely, according to circumstances peculiar to the individual in question, “seek the avoid the attribution of the act” on him/her. A justification of an act, on the other hand do not accept that wrongness of a particular act, but on the other hand believe than an individual was correct in acting the way in which s/he did.[5] Thus while an individual’s insanity may be taken as an Excuse, an act which would otherwise be criminal, but in a given context performed in self-defence, would be a justification. In terms of offences that require mens rea or intent as a constituent element, a condition which prevents an individual from forming the necessary mental condition is generally taken as an Excuse. (Insanity being a very strong example of the same) This explanation has by and large been accepted by a number of theorists of criminal law, and it is on the basis of this that the researcher shall survey some judgments in the Common Law Context, in an attempt to highlight the confusion which existed in respect of it being an Excuse or a Justification.

In Attorney-General Northern Ireland v. Gallagher[6] where voluntary intoxication was not admitted as a defence by the judges while convicting the accused.  Here, intoxication was seen separate from the ability to form an intention or not, and since the Intention to commit the particular crime had existed in the accused’s mind, the exact mental condition at the time of commission of the crime was ignored. The judges decided that the intoxicated state of the accused did not take away from his ability to form Intention. Here, the researcher believes that the judges sought to perceive intoxication as an Excuse, where the individual is unable to form Intent. Since here, the Intent was formed, the Excuse was not allowed.  From this the researcher infers that the Excuse which the judiciary was seeking to apply was that of ‘inability to form Intention, due to intoxication’, and not ‘intoxication’ by itself.

Two landmark judgements in this context in English Common Law are that of D.P.P v. Majewski[7]and R. v. Caldwell[8] where the focus of the judgments was the difference Basic Intent and Specific Intent. D.P.P v. Majewski[9] for the first time in Common Law differentiated between Basic Intent and Specifit Intent. It recognized some crimes to require a specific Intent or a mens rea and that intoxication, in these cases could be used to deny criminal responsibility only if the individual could, in respect of these crimes could prove that the intoxication had prevented the individual from forming the desired mens rea. Though the judges here refused to accept such a denial of responsibility to be a defence (Excuse or justification), the researcher believes, that applying the present understanding of Excuse given Prof. George Fletcher and R.A. Duff[10], the logic applied is that of an Excuse, and the ‘inability to form an Intention, due to intoxication’ was sought to be used as an Excuse, which is this case was absent, leading therefore, to the conviction of the accused. A similar line of reasoning was upheld in the case of R. v. Caldwell[11], with the case establishing that in offences of Specific Intent, mere alcohol intake was not a defence, and that the defendant needed to prove that the given alcohol had resulted in him/her being incapable of forming the required Intention.

It must be noted, in the context of these cases that though the requirement of ‘inability to form Intent as a result of intoxication’ was never admitted as an Excuse, as the requirement was not met in either case, the logical and legal position attributed by the judges to the same was that of an Excuse. Although, this was not proven in terms of evidence, the researcher believes that the line of reasoning of the judges shows that they sought to use the idea as an Excuse, according to the present day understanding of the term.  Thus, in these cases it seems to appear that the ‘inability to form Intention as a result of intoxication’ is an Excuse. In cases which require Intent, the inability to form such Intent due excessive intake of intoxicants has been perceived to be an Excuse in the presence of which, the judiciary refuses to hold an individual responsible for his/her criminal conduct.[12]

The case of D.P.P. v. Beard[13] involving the rape and death of a 13 year old girl ruled similarly:

“Where a specific Intent is an essential element in the offence, evidence of a state of drunkenness rendering the accused incapable of forming such an Intent should be taken into consideration in order to determine whether he had in fact formed the Intent necessary to constitute the particular crime. If he was so drunk that he was incapable of forming the intent required he could not be convicted of a crime which was committed only if the Intent was proved.”[14]

Here, the lack of intention on part of the accused, was used, in the same way as an Excuse in order to acquit the accused, concretizing the idea that the ‘inability to form intention as a result of intoxication’ has the legal status of an Excuse, as per the modern understanding of the term, derived from the writings of Prof. Fletcher and Duff.[15]

Other cases in this regard that were mentioned by Chandrashekhar Aiyar J. in his judgment in the present case which present a similar point of view are that of Regina v. Cruse[16], where he quoted that:

“It appears that both these persons were drunk, and although drunkenness is no Excuse for any crime whatever, yet it is often of very great importance in cases where it is a question of intention. A person may be so drunk as to be utterly unable to form any intention at all, and yet he may be guilty of very great violence.”[17]

Once again, it is evident that intoxication here is being used as an Excuse to an offence which requires intent. Yet another case that upholds a similar line of reasoning is R. v. Moore.[18]Going by these cases it seems clear that ‘the incapacity to form Intent due to intoxication’ is treated as an offence in criminal law. However there has emerged an opinion in common law, which does not treat it as such, causing an amount of confusion as regards to the same. [19]

In this context it may also be useful to clarify that though the mere fact that a person was intoxicated while committing a criminal act does not serve as an Excuse, and it is only when one can prove that the aforementioned intoxication resulted in the individual’s inability to form intention. It is the inability to form Intent which is at the core of the defence, and not the intoxication in itself.

It is in this context that the researcher shall attempt to show that the judge in the landmark case of Basdev v. State of Pepsu[20], used a similar line of reasoning and treated the ‘inability to form Intent as a result of intoxication’ as an Excuse. Quoting a number of cases, and relying upon s. 85 of the Indian Penal Code,[21] he ruled that in offences that required intent, such a mental state needed to be proved. If an individual could show, that his mental state was such, that it was incapable for him to form an intention, he would not be convicted for the commission of the offence. In this case however, evidence showed that the appellant’s mind was not so obscured by intoxication that he could not have been able to form an intention, clarifying that it was only in situations where such Intent was clouded by intoxication, where this could work as an Excuse.

The researcher infers from the judgement that here, the ‘incapacity to form an intention’ in this case has been given the legal status of an Excuse. In the absence of Intention, the court cannot, R. A. Duff’s words “accept that it was bad but don’t accept full, or even any responsibility”[22]. It is because of that fact that in this case the Excuse of ‘inability to form Intent due to intoxication’ could not be proven that the accused was convicted.

“The accused had, therefore, failed to prove such incapacity as would have been available to him as a defence, and so the law presumes that he intended the natural and probable consequences of his act”[23]

An Excuse is something in the presence of which the nexus between a person and a crime is broken i.e. it is deemed that a person is not responsible for the crime even though he has been the cause for it. This assumes an important role in relation to offences which require Intent as an essential ingredient. In these cases, something which affects one’s ability to form Intent is taken as an Excuse. (e.g. Insanity). Here, intoxication impairs the individual’s capacity to form an Intent. In an offence such as murder, where Intent is of crucial importance, intoxication which impairs the individual to form Intent is taken as an Excuse, provided that it can be shown that Intent indeed could not have been formed at that level of intoxication. The same could not be proven in the present case, leading to the conviction of Basdev.

Should Intent be presumed?

The reasoning forwarded for the conviction of the appellant in the case of Basdev v. State of Pepsu[24] as has been discussed earlier entailed that s. 86 of the Indian Penal Code[25] requires that in offences requiring Intent as the crucial ingredient, such Intent must be proven, and is not assumed. Here, since it could not be shown that intoxication had clouded the appellant’s ability to form intent, he was not acquitted. This position of law has been critiqued on a number of grounds and from various sources. While in this case, the accused was convicted of the offence of murder, since he could not prove the Excuse of ‘inability to form Intent due to intoxication’, there are others where, a number of people who commit offences are let off, because Intent is not presumed[26] under s. 86 of the Indian Penal Code[27] could not be proved by the prosecution. This leads to acquittal in what some believe to be an unwarranted number of cases. To prevent such acquittals, the 42nd Report of the Law Commission of India[28] suggested that like Knowledge, in cases which require Intent as an ingredient, such Intent must be presumed in the case of voluntary intoxications thereby not admitting the ‘inability to form Intent due to intoxication’, as an Excuse in cases of Voluntary Intoxication. In this chapter, the researcher shall analyse whether such a move may be fair, viable, and in keeping with the principles of Criminal law and justice. The researcher will also attempt to show the rationale behind the present position of law, the reasons for, and the consequences of changing it.

The foremost and most obvious criticism leveled against the present position of law comes from the perspective of Public Defence.[29] This is in keeping with the doctrine of qui peccat ebius luat sobrius (one who sins when drunk be punished when he is sober). One of the main functions of Criminal Law is to exert a deterrence effect, in trying to protect major social and individual interests of the people,[30] while increasing the rate of conviction. Adherence to these purposes of Criminal Law may present a good case for convicting people indulging in criminal conduct, even in the absence of mental element or mens rea. The researcher can highlight two conceptual issues with such a formulation, for the conviction of offenders in the absence of Intent, in cases of offences where it is a requirement.

The first and most practical flaw in such a policy is pointed out by Sir Andrew Ashworth, who draws on the example of a similar move in Australia to illustrate his point. The given study demonstrates that an individual’s behavior in an intoxicated state (so intoxicated that the individual is incapable of forming Intent at all) does not respond to pragmatic ideas of deterrence and rationale. An individual who is so intoxicated as to not be able to form an Intent to commit a crime, is not subject to rational conditions which the law is assuming which applying the deterrence theory. Thus, the practical aim of deterrence of such crimes for the sake of public defence may not be realized by the application of such a policy. A person who is so intoxicated, will not, be deterred from committing a crime, taking cue from past examples. This line of reasoning was also offered in the case of R. v. O’ Connor[31] where the Australian High Court criticized the criminalization of basic Intent offences, even in the absence of any Intent whatsoever. They showed that no great loss to social defence had occurred at all,[32] even while acquitting the accused.

Intent or mental element is usually ignored in while convicting individuals only in terms of offences where the goal of such a move is public safety, or social defence. Here, the same goals are not being satisfied, and therefore, the policy is flawed. In most cases, the government should engage in Minimum Criminalization, and only very few and very important offences must be criminalized. Here, the criminalization of the offence, without any practical purpose, or the achievement of any goal would be pointless, and even illegitimate, on part of the government.

Secondly, as already discussed, the opinion pushing for such a change seems to argue that penalizing even in the absence of Intent would deter individuals from intoxicating themselves to the point of losing control over their actions. Thus, what is being held culpable over here is the intoxication and not the commission of the proscribed harm. In all these cases, it is assumed that a person, who intoxicates himself/herself, knows all foreseeable results of the act of intoxication, and should therefore be punished for it.[33] This seems inconsistent with well established principles of Contemporaneity i.e. the conviction of the accused is not on the basis of the crime committed, but because s/he indulged in the voluntary intake of intoxicants. [34] The researcher believes that by doing this, the law might be stepping into the domain of illegitimate legislation and criminalizing a conduct which is beyond its purview, and clearly violating the individual’s autonomy. At the same time, it is not the act, but a social conduct which the law is criminalizing. This may be inconsistent with the principles of liberalism, in a limited constitutional democracy like ours.

Thus the researcher is led to believe that the assumption of Intent, in relation to offences which require such a mental element, in cases of voluntary intoxication, may not be a rational and just decision. Not only would it overstep the boundaries of criminal law, and over-criminalize conduct which is beyond its purview, such a move would also have no practical benefits. An individual, intoxicated to a condition where s/he cannot form Intent, will not be deterred at this stage by law, from committing the offence, thus furthering the cause of public defences. Thus, the suggestion of the 42nd Law Commission of India[35], as regards the assumption of Intent in cases of voluntary intoxication may not be warranted, and the researcher argues that ‘the inability to form intention as a result of intoxication’ should continue to be admitted, when proved, as an Excuse in offences where Intent is an essential ingredient.

Subsistence of Judicial Confusion surrounding the Defence of Intoxication after the judgement in Basdev v. state of Pepsu

A survey of Indian cases following the case of Basdev v. State of Pepsu[36] shows that the present position of law has not changed much after the judgment and despite the suggestions made by the Law Commission of India in its report in 1971[37], ss. 85 and 86[38] have not been merged, nor has Intention in cases which require it as an essential mental element, been presumed in the case of Voluntary Intoxication. The position of law held by s. 86 of the Indian Penal Code, as enunciated by the given case in 1955 prevails. There has however, been a certain degree of confusion caused by usage of the term ‘presumption’ of intent, by the case, and as applied by the cases following it.

S. 86 of the Indian Penal Code holds that though Knowledge as to the consequences of his/her actions in presumed in cases of voluntary intoxication, Intent is not. Thus, while ‘lack of Intent as a result of intoxication’ is an excuse, there exists a degree of confusion as to whether the presence of Intent needs to be proved by the prosecution, or its absence, due to intoxication, proven by the defence. The case of Basdev v. State of Pepsu[39]  lays out that intent has to be inferred from attendant circumstances, and bases its non-admission of the Excuse of ‘incapacity to form Intent as a result of Intoxication’ upon the inability of the accused to prove the same. At the same time, it takes cue from the judgement of R. v. Meade[40] in order to clarify its position, thereby quoting that there is a “presumption that a man intends the natural consequences of his acts”. This however, is diametrically opposite to the writings of Indian authors and jurists who argue that s. 86 of the Indian Penal Code requires Intent to be proven by the prosecution even in cases of Voluntary Intoxication, and in their inability to do so, the accused must be acquitted i.e. there is no presumption of Intent which needs to be disproved by the defence.[41] It is in this context that the researcher shall attempt to outline the case-law after the landmark judgement of Basdev v. State of Pepsu[42], showing how the position in the mentioned case is still the present position of law, and also highlight the confusion regarding the party who is to prove Intent or the lack of it in offences under art. 86, commenting on whether Intent has been presumed in these cases by the judiciary.

In Prabhunath v. State[43], which came soon after Basdev’s[44] case, where the accused was convicted under s. 302 of the Indian Penal Code, and tried to plead the defence under s. 86. Here, the judges ruled that in the absence of evidence to the contrary, “The law presumes that the accused intended the natural and probable consequences of his acts”. Here, taking lead from the use of the quote from R. v. Meade[45] in Basdev’s case, the judges presumedIntent on the part of the accused, in the absence of strong evidence to the contrary, and like in the former case, the accused was convicted. The judgement given in this regard is important as it highlights the confusion surrounding the presumption of Intention.

Following this, in Krushna v. State of Orissa[46] where, the Orissa High Court upheld the decision in Basdev v. State of Pepsu[47] and acquitted the accused from s. 302 of the Indian Penal Code, due to the ‘incapacity to form Intent as a result of Intoxication’, instead convicted him under s. 304, where intent is not an essential ingredient. The Court arrived at this decision on the basis that “the prosecution has not established any motive for the crime which could have prompted the appellant to form an intention to kill the deceased”, thereby holding that Intention even in cases of Voluntary Intoxication had to be proved by the prosecution and was not a presumption that needed to be disproved by the defence. This is the view espoused by a number of Indian authors.[48]

The High Courts in the cases of Dasa Kandha v. State of Orissa[49] and that of Mavari Surya v. State of Andhra Pradesh[50]on the other hand reinforce the position held in Prabhunath’s[51] case. The researcher believes that this confusion is a consequence of the presumption of Intent as mentioned in the judgement given in the case of Basdev v. State of Pepsu[52]. Whether such presumption is to be made, or whether it is the defence or the prosecution who need to prove the absence or presence of such intent, remains a point unclarified by the Supreme Court, and judges on the basis of ‘attendant facts and circumstances’, decide on the admissibility of the excuse of ‘inability to form Intent as a result of Intoxication’.

Thus, the position of law established in the case of Basdev v. State of Pepsu[53] is the one that prevails today, with the ‘inability to form Intent as a result of intoxication’ being used as a defence, whereby, the absence of such Intent leads to the acquittal of individuals being tried for offences which require Intent as an essential ingredient. Confusion however, prevails as to whether such Intent is to be proved by the prosecution or disproved by the defence. The assumption of Intent, in relation to offences which require such a mental element, in cases of voluntary intoxication, may not be a rational policy choice. Not only would it overstep the boundaries of criminal law, and over-criminalize conduct which is beyond its purview, such a move would also have no practical benefits. An individual, intoxicated to a condition where s/he cannot form Intent, will not be deterred at this stage by law, from committing the offence, thus furthering the cause of public defences. Thus, the suggestion of the 42nd Law Commission of India[54], as regards the assumption of Intent in cases of voluntary intoxication may not be warranted, and the researcher concludes that ‘the inability to form intention as a result of intoxication’ should continue to be admitted, when proved, as an Excuse in offences where Intent is an essential ingredient.

.

[1] Basdev v. State of Pepsu, 1956 AIR 488, (Supreme Court of India).

[2] 42nd Report of the Law Commission of India, 1971.

[3]G. P. Fletcher, Rethinking criminal law, 759, (1978).

[4] Id.

[5] Austin writes that it is a justification when “we accept responsibility but deny that it was bad”, and it is an excuse when “we admit that it was bad but don’t accept full, or even any responsibility” as cited by R. A. Duff,  Answering for Crime: Responsibility and liability in the criminal Law, 264, (2007).

[6] Attorney-General Northern Ireland v. Gallagher, [1963] AC 349, (Court of Appeals).

[7] D.P.P. v. Majewski, [1976] UKHL 2, (House of Lords).

[8] R. v. Caldwell, [1981] AC 341, (Court of Appeals).

[9] D.P.P. v. Majewski, [1976] UKHL 2, (House of Lords).

[10]Austin writes that it is a justification when “we accept responsibility but deny that it was bad”, and it is an excuse when “we admit that it was bad but don’t accept full, or even any responsibility” as cited by R. A. Duff,  Answering for Crime: Responsibility and liability in the criminal Law, 264, (2007). Also see G. P. Fletcher, Rethinking criminal law, 759, (1978).

[11] R. v. Caldwell, [1981] AC 341, (Court of Appeals).

[12] See K.N.C. Pillai, General Principles of Criminal Law, 267, (2005).

[13] D.P.P. v. Beard, [1920] AC 479, (Court of Appeals).

[14] Id.

[15] Austin writes that it is a justification when “we accept responsibility but deny that it was bad”, and it is an excuse when “we admit that it was bad but don’t accept full, or even any responsibility” as cited by R. A. Duff,  Answering for Crime: Responsibility and liability in the criminal Law, 264, (2007). Also See G. P. Fletcher, Rethinking criminal law, 759, (1978).

[16] Regina v. Cruse, (1838) 173 E.R. 610.

[17] Regina v. Cruse, (1838) 173 E.R. 610.

[18] R. v. Moore, [1988] 1 S.C.R. 1097, (Supreme Court of Canada).

[19] But see, R. Heaton and C. D. Than, Criminal Law, 2011, where it is stated that Intoxication is used both as a justification and as an excuse. R. v. Mead, [1909] 1 K.B. 895, (King’s Bench), has a similar basis.

[20] Basdev v. State of Pepsu, 1956 AIR 488, (Supreme Court of India).

[21] S. 85, The Indian Penal Code, 1860.

[22] Austin writes that it is a justification when “we accept responsibility but deny that it was bad”, and it is an excuse when “we admit that it was bad but don’t accept full, or even any responsibility” as cited by R. A. Duff,  Answering for Crime: Responsibility and liability in the criminal Law, 264, (2007).

[23] Basdev v. State of Pepsu, 1956 AIR 488, (Supreme Court of India).

[24] Basdev v. State of Pepsu, 1956 AIR 488, (Supreme Court of India).

[25] S. 85, The Indian Penal Code, 1860.

[26]See O. P. Srivastava, principles of Criminal Law, 141, (4th edn. 2005). Also See K. D. Gaur, Criminal Law, 136, (1999). But See M. P. Tandon and R. Tandon, the Indian Penal Code, 122, (1994).

[27] S. 86, The Indian Penal Code, 1860.

[28] 42nd Report of the Law Commission of India, 1971.

[29] A. Ashworth, Principles of Criminal Law, 214, (2006).

[30] Id at 214.

[31] R. v. O’ Connor, (1980) 54 ALJR 349, (The High Court of Australia).

[32] Supra note 33, at 212

[33] A. Ashworth, Principles of Criminal Law, 214, (2006).215.

[34] See Supra note 33, at 214. Also see, R v. O’ Connor, (1980) 54 ALJR 349, (The High Court of Australia).

[35] 42nd Report of the Law Commission of India, 1971.

[36] Basdev v. State of Pepsu, 1956 AIR 488, (Supreme Court of India).

[37] 42nd Report of the Law Commission of India, 1971.

[38] The Indian Penal Code, 1860.

[39] Basdev v. State of Pepsu, 1956 AIR 488, (Supreme Court of India).

[40] R. v. Meade, [1909] 1 K.B. 895, (King’s Bench).

[41] See O. P. Srivastava, principles of Criminal Law, 141, (4th edn., 2005). Also See, K. D. Gaur, Criminal Law, 136, (1999).

[42] Basdev v. State of Pepsu, 1956 AIR 488, (Supreme Court of India).

[43]Prabhunath v. State of Orissa,  1957 AIR(All) 667, (Supreme Court of India).

[44] Basdev v. State of Pepsu, 1956 AIR 488, (Supreme Court of India).

[45] R. v. Meade, [1909] 1 K.B. 895, (King’s Bench).

[46] Krushna Singh v. State of Orissa, 1971 (77) CRLJ 1497, (High Court of Orissa).

[47] Basdev v. State of Pepsu, 1956 AIR 488, (Supreme Court of India).

[48] See O. P. Srivastava, principles of Criminal Law, 141, (4th edn., 2005). Also See K. D. Gaur, Criminal Law, 136, (1999). But See M. P. Tandon and R. Tandon, the Indian Penal Code, 122, (1994).

[49] Dasa Kandha v. State of Orissa, 1976 (82) CRLJ 2010, (High Court of Orissa).

[50] Mavari Surya v. 1995 (101) CRLJ 689, (High Court of Andhra Pradesh).

[51] Prabhunath v. State of Orissa,  1957 AIR(All) 667, (Supreme Court of India).

[52] Basdev v. State of Pepsu, 1956 AIR 488, (Supreme Court of India).

[53] Basdev v. State of Pepsu, 1956 AIR 488, (Supreme Court of India).

[54] 42nd Report of the Law Commission of India, 1971.

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