Evaluaton: General Defences (Intoxication and Consent)

Intoxication:

• One weakness of intoxication is that the specific/basic intent distinctions are illogical, the main reason for this is that there is no basic intent fall back position for theft. Theft is a specific intent crime and if the defendant was so intoxicated that they couldn't form the mens rea for theft then they can have the full defence of intoxication. Similarly, the offence of rape is a basic intent crime where as attempted rape is a specific intent crime. This is a weakness as these distinctions are illogical and it will result in injustices for the defendant and doesn't promote a certain approach to the law, as these creates a major loophole and does in fact allow intoxication as a defence.

• Another problem with intoxication is the inconsistency of the approach for intoxicated mistake. There is no defence of intoxicated mistake for basic or specific intent crimes unless the crime is criminal damage, as seen in the case of Jaggard v Dickinson. Here the defendant successfully pleaded intoxicated mistake despite it being a basic intent crime. This is a weakness as the law is not certain where mistakes are concerned and it seems illogical that you can have a defence for a crime that is one of basic intent when you cannot for other basic intent crimes. This doesn't promote fairness or justice or a consistent approach.

• Reform: The reform of intoxication was suggested by the law commission in 1993 that the Majewski rules of intoxication were unfair and the basic and specific intent alternatives should be abolished. This would change the law and prevent the illogical distinctions of rape and attempted rape and provide and consistent approach.

• Consent:

• The law is inconsistent as consent is allowed for body adornment but not sexual gratification. In the case of R v Wilson, the D branded his girlfriend and consent was allowed as a defence. In R v Brown, a group of homosexual men took part in S and M activities, consent was not allowed as a defence. This is confusing as in R v Wilson medical attention was required but in R v Brown it was not. It also appears that the law will condone acts where heterosexuals are consenting but will prohibit those involving consenting homosexuals. Therefore it could be inferred that the courts are imposing their own moral values on the law.

• Where 'horseplay' is allowed for consent it can get out of hand and serious injury can occur. In R v Jones, consent was still allowed where a boy was thrown into the air by older youths, causing a broken arm and a ruptured spleen.

• Reform: Law Commission Consultation paper No.139 (1996). Suggested extending the range of situations in which consent can be effective and removing some of the anomalies. The D should be able to rely on the V's consent to an act intended to cause injury, or likely to cause injury, but not to an act intended or likely to cause serious injury. Surgical treatment circumcision, tattooing and ear-piercing should be kept as a special case. There should be no special consideration to horseplay or sexual activities. They suggested adopting special rules in relation to boxing and other organised sports.