A Scottish perspective on the defence of intoxication
University of British Columbia
Master of Laws - LLM
The relationship between alcohol and violence is one that has caused concern for centuries. Conflict between public policy issues and the application of criminal theory has meant that the debate as to how to deal with the individual who commits acts of violence while severely intoxicated is far from settled. Canada typifies the modern position with continuing disagreement between those who favour a protectionist stance which denies, in whole or in part, a defence based on intoxication and those who feel that to allow a defence is technically correct within the framework of existing criminal theory. The latter position, which concentrates on the need to show criminal intent to justify punishment, reflects the current law of New Zealand and the common law states of Australia. This approach to the issue of intoxicated violence has recently attracted the attention of the Supreme Court of Canada. Attempts by the Court to move Canadian law in this direction have since been thwarted by the Canadian Parliament. There are fears however that this will not be the last word on the matter and that a widening of the scope of the defence is inevitable. It is submitted in this thesis that such a move would not be in the interests of Canadian society. The Australian and New Zealand approach will be criticised and shown to be untenable. Despite an inherent uncertainty as to the exact link between alcohol and violence, statistics from various medical papers will show that the incidence of alcohol related violence is high enough to warrant the complete elimination of the defence of intoxication. The legal theory that purports to uphold the defence in Australia and New Zealand will be also be examined. In Scotland it is presently the case that intoxication provides no defence to any crime. Scottish law in this area will be considered and put forward as a viable alternative to the solutions that have recently gained prominence in Canada with respect to the problem of intoxicated violence. The main conclusion of this thesis will be that the Scottish approach is justifiable from both a legal theory and public policy viewpoint.
Law, Peter A. Allard School of