This article is part 1 of a 2-part series discussing intoxication under Maltese criminal law. Part 2 will be dealing with intoxication under the Traffic Regulation Ordinance.
The state of mind of an offender in criminal offences at the moment of commission shall be the determining factor of the notion of criminal liability.
Intoxication is a factor which disrupts the mental functioning of a person consequently affecting the extent of criminal liability. In the case of ‘Republic of Malta vs. Muscat’ the Court stated “wieħed jista’ jinvoka l-intossikazzjoni bħala difiża huwa jekk l-intossikazzjoni twassal għal stat ta’ ġenn”[1]. Hence, such disruption is considered to be a mental condition defence.
The Criminal Code provides that the rule is that intoxication does not constitute a defence against criminal charges, and any defence thereof is the exception as stated in the case of ‘Republic of Malta vs. Al Shuhumi’ [2]. The reasoning of the legislator is that other mental conditions constituting a defence, such as insanity, arise from natural factors independent from the will of the person; whilst, intoxication requires the will of the person in most cases. The not constituting of a defence as a rule goes against the ‘actus non facit reum nisi mens sit rea’ principle since the mind of the person is intoxicated and lacks the mens rea.
This principle is combatted with fault liability argument, which determines fault on the person who is responsible for intoxication.
Nonetheless, the provision on intoxication lists the exceptional instance whereby intoxication does in fact constitute a defence. The exception to the rule is when the state of intoxication was caused without the consent of the offender by virtue of malice or negligence of another person.
Therefore, this requirements for this exception are:
The intoxication provisions go on further to state that a person charged by reason of intoxication shall be deemed intoxicated at the time of the act or commission. This provision, hence, requires the Court to determine whether the agent was in an unsound state of mind due to intoxication at the time of commission or act.
When an offence requires specific mens rea to prove beyond reasonable doubt, the fact of intoxication can be taken into account. Therefore, by virtue of this provision found in our law, an action leading to an offence requiring specific intent may be categorised to an offence which only requires a generic intent. In the case of ‘R vs. Doherty’ [3], the English Court provided an example highlighting that a deliberate act of homicide necessitates the specific intention to kill. Nonetheless, in most instances involving an intoxicated individual, there exists only a general intention to cause harm rather than the specific intent to kill. Therefore, in such scenario such act can be categorised as grievous bodily harm rather than wilful homicide.
Nonetheless, the defence of intoxication does not autonomously provide that the agent lacked the ability to form an intention. This is seen in the case of ‘Rex vs. Cunningham’[4], whereby the defence pleaded intoxication but failed to provide evidence deeming the agent unable to form malicious intention to constitute the offence to the satisfaction of the Court.
For more information or assistance related to Criminal Law please contact Dr Robert Tufigno and Dr Delilah Vella.
[1] English translation: One can invoke the defence of intoxication if the intoxications led to insanity; Republic of Malta vs. Charles Steven Muscat, Court of Criminal Appeal, 8 June 2006.
[2] Republic of Malta vs. Abdeladeim M.B. Al Shuhumi, Court of Magistrates, Criminal Judicature, 12 March 2024.
[3] Regina vs. Robert Frank Doherty, 16 cox cc 306, 1887.
[4] (21/12/1942)