ABSTRACT

Whichever of the approaches the substantive criminal law adopts, few individuals will be sufficiently intoxicated to have been unable to form any intention whatsoever. As a result, in all but a few exceptional cases, the fact that an individual has been drinking is not relevant to determining whether or not he can be found guilty of the offence. The only issue that the court has to determine is the appropriate sentence. Bearing this in mind, it is surprising how little attention has been paid to the impact intoxication should have on sentencing. Before the sentence is imposed, it is often made known to the court that the offender had been drinking prior to committing the offence (Rumgay 1998; Shapland 1981). Presumably this is done in the expectation that sentencers will judge the offender more favourably and apply a lesser sentence. However, it is far from clear that this is the case. In England and Wales, intoxication would appear to have no effect on sentence in most cases, reduce the sentence in some and, albeit very rarely, increase it in others (Wasik 1999). This variation makes the need for analysis even greater.