Should drunkenness be a crime?

This week a report by Alcohol Research UK and the Alcohol Academy has been published, looking at how it might be possible to improve use of the existing law on serving alcohol to people who are drunk.  I think it’s fair to sum it up (extremely briefly) as noting that there aren’t many prosecutions under this law, leading to a discussion of whether this law could be employed more actively to deal with some of the problems Britain might be said to face in relation to alcohol.  It’s well worth a read in full, as an example of clear, careful, open and pragmatic writing on alcohol policy.

Phil Mellows has written clearly and sensibly, as usual, on the practicalities of enforcing the law, and likened drunkenness to love: it’s hard to pin down in scientific terms, but you know it when you see it.  Rob Pryce wrote briefly about the purpose of having a law that effectively bans drunkenness, asking whether we should focus on the actual offences or harms, rather than some proximate causes.  My interest falls somewhere in between the two.

The whole issue, if we’re interested in thinking about whether this law should exist, and how it should be enforced, revolves around a balancing act: do the pleasures and benefits of drunkenness outweigh the risks of people hurting themselves and others.  Don’t imagine this is an easy policy decision.

A useful example is this context is legislation around driving.  We don’t simply have offences of causing harm while driving, or even driving dangerously (even if no-one was actually hurt); we also have an offence of driving while under the influence of alcohol – regardless of any other factors.

However, in this context, counterintuitively, the offence of speeding is a more relevant comparison.  By definition going at a certain speed in particular areas is defined as dangerous.  The point is that we don’t always focus on just the harmful outcomes when creating laws and regulations, and in certain contexts that seems perfectly natural.

[I should acknowledge that the report was talking about the offence that bar staff might commit by serving people who are drunk; that’s not quite the same thing as making it an offence to be drunk, but it makes it offence to make people drunk, which for some purposes is much the same thing – particularly when there’s a dedicated offence of being drunk and disorderly.  The relevant point is that public drunkenness is condemned, as I discuss in a minute.]

Having thought through the issue in this way, I’m much more sympathetic to the law than I was when debating it with the authors of the report and others on Twitter.  Then, I was taking much the same position as Rob Pryce in asking why drunkenness should be an offence in itself.  However, on balance, I think I still oppose it.  I think there are a couple of issues that set it apart from drink driving or dangerous driving.

First, what is the nature of the relationship between alcohol and dangerous driving, health or crime?

The reason we ban drink driving is that, regardless of norms or morals, people’s response times fall when they’ve been consuming alcohol, which makes them less safe drivers regardless of their intentions or motivations.  By contrast, I’d suggest the relationship between alcohol and violence or other crimes is not so straightforward – and this is Rob’s point to some extent.  Drunkenness is ‘learned behaviour’, as I never tire of pointing out, and so there’s no inevitable causal link in the same way as alcohol damages reaction times.

The case of health concerns is slightly different.  Drunkenness might be a good proxy for quantity consumed, which reflects likely health harm, and thus someone should perhaps stop drinking for their own good as much as anyone else’s.

But here we face issues of liberalism.  It’s my business if I harm my health through drinking – and the only challenge is if there are shared (NHS) costs associated with that.  But once certain activities are deemed problematic, there’s something of a slippery slope, as so many illnesses have patient decisions at some point in the causal chain and thus could somehow have been ‘avoided’.

The second issue is more fundamental.  It relates to how, with each alcohol policy decision, we’re balancing positives against risks to the drinker and others.  There are huge risks with people driving drunk, and it’s hard to endorse someone taking pleasure in the act of driving specifically while drunk on a public road.  It’s quite a different thing to condemn drunkenness not while being in charge of a car, but while simply being.  There are some definite - and I would argue legitimate - pleasures relating to being in that state, though not everyone will enjoy it and some will draw the line of pleasure at different points.

At the same time, though, just like the risks of driving while intoxicated aren’t just about someone’s own driving, but their ability to respond to other hazards or mistakes, so it could be argued that there are greater or different risks associated with being drunk in a public space with other drinkers than at home.  Hence it’s not illegal for you to pour yourself another G&T, but it is if Wetherspoon’s staff do it for you when you already seem the worse for wear.  It's illegal to drive at 40mph in some areas, but not others.

So where does that all get me in my views on serving people alcohol when they’re already ‘drunk’?  I don’t think I’m quite convinced the law should exist, but equally it’s not as straightforward as I’d initially thought: there is a case that says we ban everyone from doing certain things like driving over 30mph in a built-up area on the basis that there are risks regardless of your abilities as a driver and even if the proportion of accidents would be relatively small if we drove at 40mph instead.

Maybe, given the time I’ve given to sceptical conservatism lately, I should put my money where my mouth is and agree with the pragmatism of what is a clear, measured report looking for ways to use existing laws and regulations to address what most people would agree are problems.  Just don’t trample too hard on the carnivalesque – the fictional experiences of Pentheus and Neil Howie don’t bode well.