Intoxication and Sentencing: January 2022

By Dr Carly Lightowlers
• Intoxication resulting from substance use commonly features as a contributory factor in offending and thus in many cases sentenced by the courts. Despite this, the role of intoxication at sentencing has received little research attention. In England and Wales, no formal sentencing guidance on how intoxication ought to be considered in sentencing existed prior to 2004. Rather, practice was guided by case law or appeal judgements, which were mixed in their assessment of the role of intoxication. Since 2004, English and Welsh sentencing guidelines mandate alcohol and drug intoxication as an aggravating factor. This position has been maintained by the Sentencing Council in its offence-specific guidelines and expanded definitions accompanying the guidelines.
• Intoxication can be considered by courts in sentencing; both as part of the context of the offending behaviour and in terms of the treatment needs of the offender. However, in making intoxication an aggravating factor, the guidance suggests intoxicated offenders are more culpable for their offence and that this ought to be reflected in an increased sentence. This position is contested however.
• There are a number of challenges faced by sentencers in determining the relevance of intoxication. These include, but are not limited to:
• The assumption that intoxication always serves to aggravate offending
• Distinguishing between intoxication arising from legal and illegal substances
• Determining the role intoxication played in offending
• Defining voluntary intoxication
• Considering addiction as a mitigating factor
• Overlap with other mitigating factors
• Research suggests intoxication has been found to aggravate or mitigate sentences, depending on the context. Recent, nationally representative, studies find intoxicated violent aggressors are blamed more so than sober aggressors, in line with existing sentencing guidance. However, the context of the offence and offender demographics appear to influence the way in which intoxication affects the final sentence. Moderating factors identified in the research literature include aetiological conditions leading to addiction, an offence being an isolated incident, concomitant drug and alcohol use, offender drinking with the victim and the offence occurring in a private setting.
• Despite this emerging evidence, there is limited research in the English and Welsh context which examines the impact of intoxication across a range of offence types and subsections of the population. And little is known about the (in)equality of the application of intoxication based on demographic characteristics, other than one study highlighting how being female increased the aggravation applied. Consequently, we have only limited understanding about the way in which guidance pertaining to intoxication is being applied in practice. Given the prevalence of intoxication in cases coming before the courts, this is a significant evidence gap and this paper identifies several research priorities.
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