Q: . . . the nature of ‘specific intent’ is a matter of great importance but a careful scrutiny of the authorities . . . fails to reveal any consistent principle by which specific and basic are to be distinguished. (Ormerod, 2008)

Analyse the defences of voluntary intoxication and non-insane automatism in light of the above comment.

Essay outline answer

First explain the rules governing voluntary intoxication from Majewski (1977). If the defendant was voluntarily intoxicated with alcohol or a dangerous drug and he is charged with a specific intent crime and did not form mens rea then he is not guilty of the specific intent crime (but liability may be reduced to the basic intent alternative if there is one). However, if the defendant was voluntarily intoxicated and he is charged with a basic intent crime the prosecution does not have to prove mens rea and D is guilty. You are also advised to mention the 'gloss' from Richardson and Irwin (1999); if the defendant was voluntarily intoxicated and he is charged with a basic intent crime then the jury must ask, would he have formed mens rea if sober? If no, he is not guilty. If yes, he is guilty and the prosecution does not have to prove that he did in fact form the mens rea. Non-insane automatism also distinguishes crimes of specific and basic intent. If the defendant is charged with a crime of specific intent, then, irrespective of any fault in becoming an automaton, he is not guilty. If the defendant is charged with a basic intent crime, he is not guilty unless the prosecution can prove he was Bailey (1983) reckless in becoming an automaton.

The above shows that the distinction between specific and basic intent is vital (without it the defences fail to operate) but there are no clearly enunciated rules explaining the difference. A review of the 'definitions' (explanations?) given in Morgan (1976), Majewski (1977), Caldwell (1982), and Heard (2008) should be provided and some analysis given. From after the decision in Caldwell (1982) to before Heard (2008), it was thought that the wording of the charge dictated the outcome, but Heard (2008) seems to take us back to the Morgan/Majewski approach and the most that can be said is that the judges must determine this on a case-by-case basis.