The Gazette 1995

GAZETTE

The Law Reform

Commission Consultation

Paper on Intoxication

as a Defence to a Criminal

Offence

This publication from the Law Reform

Commission comprises five chapters

culminating in provisional proposals

for reform in the area under

consideration.

The content o f the first chapter

I provides information by way of

introduction to the subject. It is clear

that the intoxication defence has its

roots in a series o f nineteenth century

English cases culminating in the

j Director of Prosecutions v Beard

;

! 1920. This case established that

| evidence of drunkenness which

renders the accused incapable o f

forming specific intent essential to

constitute the crime should be taken

into consideration with the other facts

proved in order to determine whether

or not he had that intent. This decision

was subsequently interpreted in the

House of Lords decision of the

Director of Prosecutions v Majewski \

which distinguished two forms of

j intent, specific intent and basic intent,

However, the matter is not as simple

as that and one must also consider

other factors such as self induced

intoxication as opposed involuntary

! intoxication. Other factors which

require consideration are the issues of

I intoxication/insanity and

! intoxication/addiction.

The historical development of the

defence of intoxication is dealt with in

Chapter Two and it is clear that the

Common Law, in its formative

period, was little concerned with the

mental processes o f the offender.

Prior to the nineteenth century

intoxication was not a defence to a

criminal charge.

The Commission then proceeds to

consider, in chapter three, the law in

other jurisdictions together with an

indepth consideration of

Majewski

culminating, in Chapter Four, with a

consideration of recommendations for

reforming the intoxication defence in

' other jurisdictions.

In Chapter Five the Commission

makes it provisional proposals for

reform by recommending (a) that self

induced intoxication should never

ground a defence to any criminal

charge or, alternatively, (b) that the

offence should be that o f doing the

proscribed act while intoxicated and

that on conviction the accused should

be liable to the same punishment as

that provided by law for the offence

charged, except for murder where the

punishment should be as for

manslaughter.

B y way o f an interesting aside the

Irish Independent

of the 11 April 1995

reports that the President of the

Association of Garda Sergeants and

Inspectors recently accused the Law

Reform Commission of "foot

dragging" with its study aimed at

overhauling the current bail laws. He

is reputed to have expressed the view

that the Commission had spent most

of the past year considering the "non

issue" o f the use o f drunkenness as a

defence to a criminal offence!

Ronald J Lynam

Contract Cases and

Materials

by Robert Clark and Blanaid

Clarke; Publisher: Gill and

Macmillan; 1075 pp; Price £30.00;

softback.

Contract Cases and Materials

is an

impressive collection of extracts from

caselaw, articles and relevant

legislation.

A Casebook on Irish

Contract Law

Brian Doolan

(which has the same publisher as

C l a r k ( e ) 's book) dealt exclusively

with Irish Case Law and provided a

very useful source book for students.

The new book by

Robert Clark

and

Blanaid Clarke

is three times as long

as Brian Doo l an 's book and purports

to be a Course book for students,

especially for those without easy

access to a law library. The focus on

the needs o f students is somewhat

surprising in that the Clark(e) book

will be o f great use to practitioners

with its wide ranging sourcing o f

materials from not just Ireland but

also other c ommon law jurisdictions.

Doo l an 's book is more modest and

concise but perhaps is a better source

book for a student who does not have

substantial amount o f time to devote

to each area o f contract law and yet

wishes to gain some understanding of

the judicial reasoning behind the

principle as enunciated in the contract

text books.

Contract Cases and Materials

will be

extremely useful for practitioners. For

a modest investment one obtains a

diverse collection of materials with

which to better understand the

intricacies o f various aspects of

contract law. As the authors point out

in their preface, some areas o f

| contract law do not yet have the

benefit of modern Irish precedents and

therefore foreign cases are very useful

to practitioners charting possible

courses o f action for the Irish courts.

Given the size of the book, at 1,072

pages, one would expect that all areas

of contract law would be

•

| comprehensively covered. However,

! there are some noticeable gaps. For

example, despite devoting fourteen

pages to agency in the context of

privity o f contract, the authors do not

give any extracts from the EC

Directive on self employed

commercial agents or the Irish

implementing legislation. While

statutory limitation of freedom of

j contract is addressed, no mention is

I made of the impact o f European Law

in this area, other than to refer to the

unfair contract terms directive and the !

travel directive at page 3 84 of the text,

One would have expected that

relevant provisions o f the directive on J

self employed commercial agents and

the software directive, to name but

two, would have also been mentioned

given their mandatory requirements.

Another problem with

Contract Cases

and Materials

is the lack of a subject

index. While Doo l an 's book runs only

3 2 8 pages its (admittedly short) index

is useful in locating relevant cases at a

glance. Conversely

Contract

Cases

and Materials

has no subject index

whatsoever and this limits the

accessibility of the materials

contained in the book. The print in

' Clark(e)'s book is also quite difficult

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