1. DPP v Majewski [1977] AC 443.

2. In Smith & Hogan, Criminal Law (5th edn, 1983) it is said, ‘The only safe conclusion seems to be that [the definition of] “Crime requiring specific intent” is based on no principle but on policy. In order to know how a crime should be classified for this purpose we can only look to the decisions of the courts.’

3. The main obstacle in the way of a sensible definition of specific/basic intent was removed when Maloney [1985] AC 905 basically confined the mens rear required for murder to intention. Murder has always been considered an offence of specific intent but was difficult to bring within any definition of such offences while Hyam v DPP [1975] AC 55 appeared to say that it could be committed recklessly.

4. As can be seen from Smith & Hogan, op cit n 2 above, at p 192, this does present one solution to the problem of reconciling the Majewski rule with the Criminal Justice Act 1967, s 8. However, it poses a far more difficult one in that it would make it necessary to establish the level of intoxication which caused the Mujnwski rule to operate. If intoxication is simply evidence that cannot be used to show lack of mens rea the level is determined by whether the other circumstances of the case make it credible that D did not have mens rea. However, the more extreme form of the rule, with intoxication substituting for mens rea, would make it necessary to set a level of intoxication triggering the operation of the Mujewski rule.

5. See previous note.

6. R v Caldwell [1982] AC 341.

7. If the offence is one for which Caldwell recklessness suffice, D can, of course, still be convicted if he consciously took the risk. Caldwell recklessness is the minimum mens rea required for the offence.

8. [1957] 2 QB 396.

9. [1985] 1 WLR 64.

10. The first part of the appeal was dismissed. It was argued that both requirements of recklessness in the offence could not be satisfied by Caldwell recklessness.

11. At p 70.

12. [1983] 1 WLR939.

13. Hill v Barter [1958] 1 QB 277.

14. [1983] 1 WLR 760.

15. The second part of the article is an attempt to discover exactly what D has to be reckless to in this situation. However, whatever the meaning of the test of recklessness in Hardie it does imply a fault element and clearly there is no fault in cases like Elliot v C.

16. ‘To lose one parent may be regarded as a misfortune; to lose both looks like carelessness.’ Oscar Wilde, The Importance of being Earnest.

17. The court themselves may well be unaware of any change in the sense in which the term has been used.

18. John E. Stannard, ‘The demise of drunkenness’ (1982) 2 LS 291.

19. DPP v Beard [1920] AC 479.

20. Offences Against the Person Act 1861, s 18. See Stannard, op cit n 18 above, at p 297.

21. See note 2.

22. A. J. Ashworth, ‘Reason, Logic and Criminal Liability’ (1975) 91 LQR 102 at 124. The article is concerned with the restrictions, in terms of D's fault, which the Courts have placed upon defences such as intoxication, automatism and duress.

23. The Butler Committee porposed that ‘voluntary intoxication’ should be defined to clearly contain a fault element. ‘“Voluntary intoxication” means intoxication resulting from intentional taking of drink or a drug knowing that it is capable of having an intoxicating effect: provided that intoxication is not voluntary if it results in part from a fact unknown to the defendant that increases his sensitivity to drink or drugs.’ (Cmnd 6244 para 18.56.)

24. See Lord Elwyn-Jones [1977] AC 443 at 475, Lord Edmund Davies at 497 and Lord Russell at 498.

25. Alan Dashwood, ‘Logic and the Lords in Mujewski [1977] Crim LR 532 at 539–541.

26. The argument being that the court was using a word commonly associated with mens rea to disguise the fact that D was being convicted without mens rea.

27. The terminology is more than a little awkward but should also encompass situations where the mens rea required is as to some occurrence other than the actus reus, eg the mens rea equired by the Of Fences Against the Person Act 1861, s 20, is probably present if D is reckless as to causing some physical injury. He need not have foreseen the degree of harm required by the actus reus (greivous bodily harm). See Mowat [1968] 1 QB 421.

28. See Hardie at p 70 and Baily [1983] 1 WLR 760 at 765.

29. See text under subheading ‘Interpretation (c)’.

30. [1973] QB 910.

31. At p 922.

34. At p 923. For example, the judge thought that it would have been necessary to ask the jury whether D knew that he was getting into a hypoglycaemic episode.

33. Glanville Williams seems to so regard it: Textbook of Criminal Low (2nd edn, 1983), chapter 29.

34. [1983] 1 WLR 760.

35. See text at note 42.

36. [1985] 1 WLR 64 at 70.

37. At p 70.

38. Driving after taking a sedative could be ‘reckless’ without the need for any special rule.

39. This would seem to be Glanville Williams' view of the case; op czt n 33 above, at p 683.

40. At p 69.

41. Op cit n 25 above, at p 540.

42. [1983] 1 WLR 760.

43. At p 764.

44. At pp 764–765

45. At p 765

46. A-G for N Ireland v Gallagher [1963] AC 349.

47. See Smith & Hogan, op cit n 2 above, at p 198 and the graphic example given by Glanville Williams op cit n 33 above, at p 468 : ‘Suppose that a man set a time bomb to kill people, and is asleep when it goes off; obviously he is guilty of murder. Similarly, if he fuddles himself with drink in order to commit murder, he turns himself into a kind of human time bomb.’

48. If he had envisaged himself perpetrating the actus reus when he allowed himself to become incapacitated.

49. See text at notes 39–41.

50. Op cit, n 25 above, p 541.

51. The Mujewski rule was rejected by the High Court of Australia in O'Connor (1980) 29 ALR 449. See also J. C. Smith, ‘Majewski Down Under’ 1 OJLS 127. Note the comment at p 128. ‘It seems then that there is some existing experience for the view that no fearful consequences will follow [from not following Mejewski] but, if this is so, it will scarcely be possible to say whether it is the application of the law which leads generally to the conviction of the dangerously intoxicated offenders or because juries ignore the law and convict the dangerously intoxicated offender anyway.’

52. Eg Thabo-meli [1954] 1 WLR 228.

53. It would also dispense with the need to distinguish offences of specific and basic intent.

54. This is, of course, an argument for not basing D's conviction upon the actual actus reus performed either. The Butler Committee (Cmnd 6244) recommended that this should be the case but the suggestion was considered unsatisfactory by the Criminal Law Revision Committee (CLRC/OAP/R pp 111–118).

55. The author wishes to express her gratitude to Mr Michael Hirst for his helpful comments upon earlier drafts of this article. Any remaining errors should be attributed to the author alone.