Drunk, dangerous and delusional: how legal concept‐creep risks overcriminalization

Abstract

Background In the recent case of R v. Taj, the Court of Appeal of England and Wales upheld the conviction of a defendant who, in a psychotic delusional state, mistook his non‐threatening victim to be a terrorist, violently attacking him. The law typically allows honest mistakes (even if unreasonable) as a basis for self‐defence (in this case the defence of others). However, because Taj's delusions were found by the court to have been caused by voluntary alcohol consumption, special legal (prior‐fault) intoxication rules were applied to block his defence; Taj was convicted and sentenced to 19 years imprisonment for attempted murder. Argument We focus here on the simple question—what does it mean to be intoxicated? On the facts, Taj did not have drugs active in his system at the time of the attack, but the court nonetheless insisted that Taj's delusional mistake was ‘attributable to intoxication’; namely, to drink‐ and drug‐taking in the previous days and weeks. This extended conception of intoxication was questionably distinguished from psychosis induced by withdrawal. Furthermore, the court was unreceptive to evidence of a long‐standing, underlying mental health disorder. We argue that the court's expanded view of intoxication is problematic, in that intoxication‐induced psychosis cannot be sharply distinguished from other causes such as mental disorders; and even if it could be distinguished, it should not give rise to blame and punishment in the same way as does conduct induced by chemically active intoxicants (‘drug‐on‐board’). Conclusion The courts’ expansion of the definition of intoxication is both legally and forensically problematic, introducing legal vagaries where the clinical science is already vague; and with intoxication frequently interlocking with historic intoxication and secondary or comorbid mental health conditions, the decision risks inappropriately and/or over‐criminalizing defendants.

Stretching the Double Hermeneutic: A Critical Examination of Lay Meanings of ‘Emotional Labour’

“…However, as Cascadic and Brown (2016) point out, reckless expansion of definition can lead to ambiguity. For example, Crombag et al (2020) show how legal concept creep–specifically the expansion of the term ‘intoxication’–can lead to overcriminalization of vulnerable people. Seeking to explain why harm-related concepts creep, Haslam et al (2020) hypothesised a possible causal relationship between the phenomenon and a cultural shift that took place in the 1980s, wherein liberal backlash to the new era of neoliberalism, the rise in critical theories, and proliferation of post-materialist values resulted in a growing concern about harm.…”

Balancing compassion, accountability, and causal clarity

“…Crombag and colleagues [1] offer a compelling critique of the Taj case and its problematic treatment of intoxication, addiction, and cognitive dysfunction. In this brief comment, I will focus on ways in which the Taj case illustrates the uneasy tension between lay and expert concepts of causation, responsibility, and addiction.…”

Legal concept‐creep and scientific imprecision

“…Crombag and colleagues [2] worry that R v. Taj (2018) EWCA Crim 1743 widens the prior‐fault doctrine's scope in England and Wales. Before Taj , prior‐fault attached to criminal psychosis that manifested while a defendant was intoxicated, but not if the psychosis manifested after intoxication had already dissipated; yet the trial court in Taj imputed fault even absent ongoing intoxication, because the defendant's criminal psychosis followed so shortly after withdrawal from psychosis‐inducing substance ingestion.…”