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Incapacity does not technically provide a defence to a crime, it negates the mens rea instead. There are 4 types of incapacity: intoxication, insanity, automatism and diminished responsibility.


Intoxication refers to alcohol or other substances impairing a defendant’s capacity. There are two types of intoxication: voluntary and involuntary, the former where the defendant chooses to consume alcohol or another impairing substance, and the latter where intoxication is forced. This defence places an evidential burden on the defendant. Once the judge has been passed with some evidence, the legal burden will be on the prosecution to prove that the defence cannot be made out. If intoxication is successfully pleaded, the offence committed will be reduced to a lesser offence.

Voluntary intoxication

In the words of Glanville Williams, it would be inimical to the safety of us all if intoxication provided a general exemption from criminal liability. Therefore, as illustrated by the legendary case of Lipman [1970], policy requires that intoxication does not automatically prevent criminal liability.

Starting from the assumption that alcohol will not assist a defendant, if an offence is one requiring a ‘specific intent’, a jury is entitled to consider whether a defendant had the relevant mens rea of the defence, taking into account his consumption of alcohol. If alcohol negated the mens rea, the defendant will be absolved from liability. Conversely, if the offence is one of ‘basic intent’, the defendant’s intoxication must be ignored, generally making it easier for an intoxicated defendant to be found guilty of that offence...

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