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Abstract

Criminal courts sentence many crimes involving alcohol intoxication. However, how alcohol intoxication shapes blame and culpability is not straightforward, and how intoxication should influence sentencing is contested. This invites a critical analysis of sentencing guidelines to show how they construct and interpret the alcohol–crime relationship. Bacchi’s framework What’s the problem represented to be? was used to analyse how the ‘problem’ of alcohol intoxication in offending has been represented in English and Welsh sentencing guidelines. Analysis revealed the sentencing guidelines’ authority in legitimising an uplift in sentencing for intoxicated offenders and showed that they construct the ‘problem’ as involving consumers of alcohol whose behaviour is voluntary and irresponsible, and therefore more dangerous or blameworthy. Findings reveal prominent judicial ideals like objectivity, autonomy and freedom of choice, and demonstrate how these official representations of alcohol’s role in crime have entrenched simplistic narratives about the people involved. This is salient as other jurisdictions are increasingly developing guidelines to inform sentencing decisions in criminal courts.

Keywords

Alcohol Bacchi courts intoxication sentencing

Background

Alcohol is implicated in numerous crimes and criminal justice engaged populations are associated with higher rates of alcohol use disorders (Newbury-Birch et al., 2016; Sondhi et al., 2020). Crimes can be defined by the consumption or sale of alcohol, such as drink-driving, and alcohol intoxication can be a feature of offending behaviour, such as violence. As such, alcohol (despite being a legal commodity in England and Wales) can be a defining feature of criminal behaviour, or – perhaps more commonly – a contextual factor impacting the form, size and scale of the ‘problem’ (Bromley and Nelson, 2002; Felson et al., 2008; Graham et al., 2011; Lipsey et al., 1997; Taylor et al., 2010). However, the relationship between alcohol use and offending behaviour is far from straightforward and the association between alcohol and crime routinely reveals itself as a complex interplay or ‘assemblage’ (MacLean and Moore, 2014) of interpersonal, social, cultural and structural factors (Bennett and Holloway, 2005, 2009, 2010; Graham and Wells, 2003; Hobbs et al., 2003; Leonard, 2005).

Noting the multiple pathways by which alcohol consumption and offending are potentially associated, criminal courts are charged with sentencing crimes involving alcohol intoxication, and in the English and Welsh contexts, sentencers are issued with the relevant guidelines. They have limited discretion in dealing with alcohol-defined crimes, apart from establishing the presence/absence of alcohol intoxication and potentially the degree thereof. However, in the case of alcohol-related crimes, the relevance of the presence of alcohol intoxication needs to be determined (see Quilter and McNamara, 2018) as does the direction and weight this might carry in determining an appropriate sentence. Divergent assessments on these matters may result in unwanted disparities and inequalities in how punishment is meted out (e.g. along dimensions of gender and class; Bryant and Lightowlers, 2021; Lightowlers, 2019). Given the plethora of ways in which alcohol might be implicated in offending the potential for such disparities is rife. Sentencing guidelines represent an effort to mitigate against widespread variation in outcomes in structuring sentence decision-making (Roberts, 2019). They offer a framework for sentencing offences in England and Wales, including those that are alcohol-related.

As sentencing serves as a powerful tool for the denunciation of intoxicated comportment (Lightowlers, 2022; Lightowlers et al., 2020; Warner et al., 2018), the policy that guides sentence outcomes contains significant information about implicit assumptions concerning the alcohol-crime link and associated notions of intoxicated culpability. In England and Wales, sentencing is informed by guidelines issued by the Sentencing Council (formerly, Sentencing Guidelines Council) on a range of factors, including intoxication. These guidelines enact concepts of causation, volition and responsibility in relation to alcohol intoxication, and sentencers are expected to follow them except where they believe it is not in the interests of justice to do so (Sentencing Act 2020, s. 59(1)).

However, as detailed above, the way in which alcohol intoxication shapes blame and culpability is not straightforward, and how it should influence sentencing is contested (see Ashworth, 2015; Dingwall, 2006; Handler, 2013; Lightowlers, 2022; Sinclair-House et al., 2020; Warner et al., 2018). Indeed, intoxication remains one of the most prevalent and contentious sentencing factors (Dingwall, 2006; Lightowlers, 2019; Lightowlers and Pina-Sánchez, 2017). Moreover, sentencing policy and practice are far from neutral, as they serve to communicate moral judgement and social disapproval of behaviours (Duff, 2001; Von Hirsch and Ashworth, 2005) such as alcohol drinking and crime, and ‘alcohol problems’ often ‘operate as taken-for-granted descriptions of conditions that ought to be rectified and/or eliminated’ (Bacchi, 2018: 4). As such, the development of sentencing guidelines relating to alcohol intoxication invites a critical analysis of the ways in which the guidelines construct the relationship between alcohol and crime. Especially, as many jurisdictions internationally seek to develop guidelines to structure sentencing decisions in criminal courts (Freiberg, 2021; Roberts, 2019). And some, such as the United States and New Zealand, have explicitly declared intoxication as irrelevant in sentencing (Dingwall and Koffman, 2008).

Making use of Bacchi’s (2009) post-structuralist What is the problem represented to be (WPR)? framework, this article seeks to advance our understanding of how the ‘problem’ of alcohol-related crime is represented in the English and Welsh sentencing guidelines and to assess conceptions of alcohol’s role in offending behaviour that are reinforced by these guidelines, the effects of this problematisation as well as the scope for alternative conceptualisations of the ‘problem’. Doing so affords an opportunity to reflect on the politics of the ‘problem’ and to consider how these politics have been constructed and reinforced. It also invites consideration of directions of travel in how alcohol is viewed in criminal justice and specifically in sentencing policy and practice. That is, ‘instead of assuming that ‘alcohol problems’ (or ‘alcohol harms’) exist as objective entities, the task becomes considering just what kinds of “things” make up the content of the category’ (Bacchi, 2015: 134). It is therefore important to challenge the presumption that the current approach is fixed and uncontroversial and to assess the implicit laden meanings embedded within it (see Bletsas and Beasley, 2012).

Drawing on the WPR framework presented by Bacchi (2009), this article critically explores how alcohol intoxication and its role in offending behaviour have been problematised in sentencing guidelines. The analysis focuses on the following key directives: Overarching Principles: Seriousness guideline issued by the Sentencing Council in 2004; the offence-specific guidelines (e.g. on assault) later issued by the Sentencing Council in 2011 and the subsequent expanded explanations added into the guidelines (Sentencing Council, 2019a). Noting that the law (in relation to intoxication; Handler, 2013) – and social policy more generally – is slow to change and tends towards inertia unless disrupted by key events (Cairney, 2012), these documents (and their updates Sentencing Council, 2024, 2025) represent the full suite of policy directives in England and Wales that shape sentencing practice relating to alcohol intoxication and offending. Each directive builds on/updates the former to offer further guidance and exposition as to how alcohol intoxication ought to be considered, and they inform sentence decision-making. They are collectively referred to by both magistrates and judges in criminal courts in arriving at their decisions, and so actively and cumulatively shape the experiences of those who are sentenced in court for offences relating to their alcohol consumption.

Conceptual framework and methodology

Sentencing as moral communication

The law can be understood as ‘reflecting, and in turn re-enacting, the (always changing) values of a given society’ (Seear and Fraser, 2014: 828), and punishment can be seen as an expression of disapproval and censure (cf. Duff, 2001; Von Hirsch and Ashworth, 2005). Sentencing enacts the law and ensures public confidence in the justice system. Yet sentencing policy and practice are far from neutral; rather, they rely on subjective assessments of the role played by alcohol in offending. Moreover, policies concerning punishment mirror the cultural politics of the time and place (i.e. attitudes towards alcohol, drunken behaviour and offending) and carry implicit ‘value judgements about who should be rewarded or punished by government’. Sentencing guidelines are thus ‘determined by the judicial culture in which they are set’ (Roberts, 2019: 49) and are constitutive of sentencing practice. Ultimately, there is no ‘ideal’ model of sentencing: ‘rather, each state must choose a combination of design features (. . .) appropriate to its local circumstances and political realities’ (cited in Roberts, 2019: 51). Moreover, views about alcohol problems are rooted in stereotypes about whose behaviour is problematic and how alcohol problems are defined (Morris et al., 2023).

How alcohol intoxication shapes blame and culpability is not straightforward, and is the subject of longstanding legal debate (see Ashworth, 2015; Dingwall, 2006; Sinclair-House et al., 2020). And, as ‘sentencing is inextricably linked to social values’, the grounds on which intoxication is deemed relevant in sentencing serves as a powerful tool for the denunciation of intoxicated comportment. Sentencing policy and practice are thus necessarily ‘shaped by moral and social norms about alcohol intoxication and (violent) offending, which seemingly interact with interpretations of the purpose of punishment and sentencing principles, for whom and in what context’ (Lightowlers et al., 2020: 14).

Sentencing guidelines

The English and Welsh sentencing guidelines are aimed at structuring and promoting consistency in sentencing practice and are targeted at both the magistracy and judiciary for use in the criminal courts.¹ They are issued by the Sentencing Council for England and Wales, an independent arm’s-length body of the Ministry of Justice, which was set up in April 2010 under the Coroners and Justice Act 2009² to promote greater transparency and consistency in sentencing while maintaining the independence of the judiciary. The sentencing guidelines thereby offer advice to sentencers as to how to conduct their decision-making on sentencing in court, with the aim of ensuring that a consistent approach to sentencing is adopted.

Sentencing guidelines in England and Wales prompt a stepped approach to sentencing, where the first step assesses an offender’s culpability and the harm caused by the offence. This determines a starting point for the sentence. A second step then prompts consideration of any aggravating or mitigating factors to be considered, which can serve to increase or decrease the sentence accordingly. This second step includes consideration of the presence of alcohol intoxication.

The first sentencing policy guidance related to intoxication featured in the Sentencing Guidelines Council’s (2004) Overarching Principles: Seriousness. No formal guidance on this matter existed prior to the seriousness (SGC, 2004) guideline, and practice was directed by case law/statements of value in appeal judgements, which have been mixed in their interpretation of the role of intoxication. Although they did not have the status of ‘guideline judgments’, these points of reference have suggested that intoxication is a neutral factor (Bradley (1980) 2 Cr.App.R.(S.) 12; Attorney General’s Reference No.79 of 1999 [2000] 2 Cr.App.R.(S.) 124; Parkhouse [1999] 2 Cr.App.R.(S.) 208), while others have suggested, either expressly or by implication, that it is a mitigating factor (Abrahams (1980) 2 Cr.App.R.(S.) 10; Spence (1982) 4 Cr.App.R.(S.) 175). This diversity in interpretation underscores the diversity of approaches that could be adopted in interpreting alcohol’s role in crime and determining the extent to which it affects culpability.

The significance of these initial guidelines (Overarching Principles: Seriousness) is that they are the first sentencing policy directives to specifically identify intoxication as an aggravating factor, thereby holding a defendant more responsible for their offence and enacting a particular construction of the ‘problem’ to be addressed by the courts. The policy document comprises 14 pages, and one section (Sentencing Guidelines Council (SGC), 2004, 1.22: 6) provides a list of aggravating factors that indicate higher culpability, featuring ‘commission of an offence while under the influence of alcohol or drugs’. This document thus served to formally constitute (alcohol) intoxication as an aggravating factor in crime, and it provided the most obvious point of departure for the analysis presented here, as it cemented the approach to be taken when sentencing intoxicated offenders and so actively created (or produced) the policy ‘problem’ to be addressed (Bacchi, 2009: 1).

The later Sentencing Council’s offence specific guidelines followed in 2011. These were originally published as standalone documents and are now available digitally. Directives about alcohol intoxication featured in more than 44 offence-specific guidelines, for example, on assault (Sentencing Council, 2011). These served to further cement, uphold and reinforce the approach in the earlier Sentencing Guidelines Council’s (2004) Overarching Principles on Seriousness, where alcohol intoxication is considered as an aggravating factor. As in earlier guidance, the Sentencing Council lists intoxication as an aggravating factor in each offence-specific guideline, where it deems this consideration to be relevant. The guidelines thus direct sentencers to hold a defendant more culpable for their offence where intoxication is present. However, there is still ambiguity about how this is to be determined, and also about the relative weight that ought to be attached to the intoxication. (See Quilter and McNamara, 2018 for similar legal considerations in the Australian context.).

Expanded explanations for some sentencing factors, including intoxication, were later provided and came into force as part of the General guideline: Overarching Principles (Sentencing Council, 2019b) and offence-specific guidelines in October 2019 (Sentencing Council, 2019a). These were issued to make it easier for courts to maintain consistency and transparency in sentencing. The expanded explanation accompanying the aggravation of intoxication comprises four sentences of text that are digitally embedded in each guideline, and which provide further information about considerations concerning the relevance and role of (alcohol) intoxication that should be taken into account when deciding upon a suitable sentence. Further amendments to the sentencing guidelines were issued by the Sentencing Council in 2024. And 2025 saw significant revisions to one of the most important of all the Sentencing Council’s guidelines:³ the Imposition of community and custodial sentences guideline (effective from 1 September 2025).

The analysis advanced in this article focuses on all cumulative sentencing directives and developments detailed above, as these collectively form the practice directives courts are expected to follow when considering (alcohol) intoxication. They therefore represent a key site in the production of meanings around alcohol intoxication and crime and the construction of intoxication as a significant social problem.

Analytical framework

Policies constitute or produce particular representations of problems, and the analysis of sentencing policies for crimes connected with intoxication is informed by the post-structuralist framework of Bacchi’s (2009) What is the problem represented to be (WPR)? This approach:

encourages researchers to look at specific policy proposals to identify problem representations. This analytic strategy is based on the premise that what we decide to do about something indicates what we think needs to change and, hence, what is represented to be ‘problematic’. (Bacchi, 2015)

Adopting the WPR framework shifts the focus from considerations of ‘problem solving’ to ‘problem questioning’ – namely the active process of problem construction (Riemann, 2023). Indeed, ‘by making the ‘problem’ itself the focus of analysis, it becomes possible to uncover the political, epistemological and historical contexts which are constitutive of the problem representation’ (Riemann, 2023: 155). How policy solutions are represented actively shapes what is seen and thought of as problematic or not. The WPR approach thus looks for salient constructions and silences in policies and explores unexamined assumptions. Indeed, Bacchi (2015) has highlighted how categories such as crime produce ‘problems’ of nonconformity which often attract harsh penalties and coercive treatment.

Others have deployed the (WPR) theoretical framework to explore policies concerning substance use (e.g. Brown and Wincup, 2020; Fraser and Moore, 2011; Lancaster et al., 2015; Seear and Fraser, 2014) and crime/criminal justice issues (e.g. Holt and Lewis, 2021; McGarry and FitzGerald, 2017; Ugwudike and Sánchez-Benitez, 2024). A range of representations have been studied globally in policy documentation (e.g. Bacchi, 2015, 2018; Brown and Wincup, 2020; Calnan et al., 2018; Fraser and Moore, 2011; Lancaster et al., 2015; Madden et al., 2021; Pienaar and Savic, 2016; Sebeelo, 2021), law (e.g. Barratt et al., 2017; Lancaster et al., 2015; Seear and Fraser, 2014) and media coverage (e.g. Atkinson et al., 2019; Boyd, 2014; McGarry and FitzGerald, 2017; Ugwudike et al., 2024). However, as far as the author is aware, none have explored sentencing policy as it relates to alcohol intoxication specifically. In the WPR framework, policy can comprise ‘activities of state institutions and of other agencies and professions involved in maintaining social order’ in the form of official documents and other written texts which serve to prescribe an approach or to guide conduct (Bacchi and Goodwin, 2016: 18). Indeed, scholars have illustrated how ‘the law creates particular categories of transgression (or ‘problems’ of transgression) at particular times depending upon contemporary political and other forces, both explicit and implicit’ (Seear and Fraser, 2014: 828). The guidance issued to sentencing practitioners on how to approach sentencing offences in which (alcohol) intoxication features falls within this broad definition of policy and is proposed as the ‘solution’ to dealing with intoxicated offending. Adopting the WPR approach allows for analysis of the deep-seated conceptual logic implicit within sentencing guidelines and enables the premises that underpin them to be subjected to scrutiny (Bletsas and Beasley, 2012). It thereby provides an opportunity to expose the role that sentencing guidelines play in formulating the problem of intoxication and crime, rather than simply addressing the problem as the guidelines present it (see Seear and Fraser, 2014). Indeed, Bacchi (2015) herself deployed the WPR framework to examine conceptualisations of ‘alcohol problems’. Yet, to the author’s knowledge, this is the first time that the WPR approach has been used to analyse sentencing guidance relating to alcohol intoxication.

Bacchi (2009) offers six interconnected questions through which to probe the underlying presuppositions and forms of problematisation within policy (where the policy is postulated as the solution to the ‘problem’):

What’s the ‘problem’ represented to be in a specific policy or policy proposal?

What presuppositions or assumptions underpin this representation of the ‘problem’?

How has this representation of the ‘problem’ come about?

What is left unproblematic in this problem representation? Where are the silences?

What effects are produced by this representation of the ‘problem’?

How/where has this representation of the ‘problem’ been produced, disseminated and defended? How has it been (or could be) questioned, disrupted and replaced?

Step 7: Apply this list of questions to your own problem representations.

(Bacchi, 2009: 2; Bacchi and Goodwin, 2016: 20).

The analysis that follows is prompted by these questions, although it does not need to tend to all formulaically/equally (Bacchi, 2009). As the questions intersect, an integrated analysis (Bacchi, 2015) in which the questions operate in the background of an analysis is presented. The paper proceeds with a chronological review of the policies in the order they evolved, with reference to Bacchi’s framework. Initially this process is guided by Questions 1, 2 and 6 to inform commentary on the problem representations that have dominated since the inception of sentencing guidance on intoxication (Q1–2) and to look at how these representations have been reinforced and whether they might be disrupted and replaced (Q6). This process served as a point of departure for further examining of silences (Q4).

Findings

Constituting alcohol intoxication as aggravation

The Sentencing Guidelines Council (SGC, 2004: 6) issued the first explicit sentencing policy directive to note the ‘commission of an offence while under the influence of alcohol or drugs’ as a factor indicating higher culpability of the offender. Intoxication features as just one of a list of ‘important aggravating features with potential application to more than one offence or class of offences’ (SGC, 2004: 6, emphasis added). Its presence is thus considered to make the offence more serious and so deserving of additional punishment.

The Sentencing Guidelines aim to reduce disparities in sentencing, and Dingwall and Koffman (2008) suggest that:

a uniform approach is necessary in order to avoid the unfairness associated with disparity. Given the proportion of offenders who drink prior to offending, finding a uniform approach is a matter of significant practical importance and, to this extent, the statement of the Sentencing Guidelines Council (2004) is to be welcomed. (p. 345)

As a non-statutory aggravating factor, being under the influence of alcohol at the time of an offence can thus legitimately serve to increase a sentence issued by the court.⁴ However, the guidance does not indicate the circumstances in which the aggravation of intoxication ought to apply, and it does not give direction in the ‘uplift’ to be applied. Rather, the court is left to determine the relevance of having committed the offence while under the influence and to assess the weight that should be given to this in arriving at a final sentence, thereby allowing considerable discretion and potentially leading to bias and inconsistent practice in determining the punitive ‘dose’ to be administered (see Lightowlers, 2022).

This directive underscores earlier legislative provisions for assessing the seriousness of an offence in what was then section 143(1) of Criminal Justice Act 2003 (now Sentencing Act 2020 S.63) which says:

In considering the seriousness of any offence, the court must consider the offender’s culpability in committing the offence and any harm which the offence caused, was intended to cause or might foreseeably have caused.

In combination, these directives maintain that alcohol (as well as drug) intoxication can lead to a defendant being held more culpable for their offence (compared with sober offenders/aggressors) once guilt has been determined (SGC, 2004). This in turn can be reflected in the sentence they receive. As in drug policy more generally, ‘the overriding presupposition is that drug [and alcohol] use is problematic’ and represents a risk to society – as such, there is a need to responsibilise individuals (Brown and Wincup, 2020: 5).

Constructing the ‘problem’ of alcohol intoxication in crime

The implicit denunciative message contained in the 2004 directive is that offenders must accept the consequences of their behaviour even if intoxicated, and it constructs the problem as one of irresponsible – and so dangerous or more blameworthy – consumption of alcohol. This counters the fact that ‘many offenders subsequently claim that the fact that they had been drinking should mitigate their sentence’, that is, that their culpability ought to be reduced owing to their intoxication (Dingwall and Koffman, 2008: 335). Rather, as per the guidance, offenders’ alcohol consumption and criminal behaviour position them as more deviant or ‘transgressive citizens’ (Seear and Fraser, 2014: 826). However, this positionality also reveals ‘the important role assumptions and claims about the ‘properties’ and ‘effects’ of drugs play in this process’ (Seear and Fraser, 2014: 831) – namely ‘its ‘nature’, ‘causes’ and ‘effects’’ (Seear and Fraser, 2014: 827). It demonstrates how, rather than being a problem of structural inequality, the problem is framed as one of individual choice and responsibilities as seen in many criminal justice and substance use policies (Bacchi, 2009; Bletsas, 2007) used to justify ‘disciplinary mechanisms to regulate behaviour’ (Brown and Wincup, 2020: 1).

In the SGC’s (2004) initial formulation, the ‘problem’ of alcohol-related offending is constructed on a simple causal model in which alcohol’s presence is sufficient to attribute causation. It also assumes this to be the case for all crime types and in all contexts, despite the research evidence refuting this simplistic interpretation (Felson et al., 2008; Graham et al., 2011; Lipsey et al., 1997; Taylor et al., 2010). The guidance indirectly posits that substance intoxication has a direct, causal relationship with criminal behaviour and that this criminal behaviour would not have occurred if it were not for the intoxication.

It is also noteworthy that the aggravation of intoxication pertains to intoxication stemming from both legal and illegal substances equally, even though the latter represents further criminalised behaviour (in contrast to legally permissible consumption of alcohol subject to age limits). Alcohol and drugs are thus placed on an equal footing in this legal framework, which runs counter to many other policy constructions of drug use as being more serious (e.g. Lightowlers and Duke, 2024). The universal applicability and lack of distinction between different kinds of substances that potentially intoxicate and their differential impact on criminal behaviour are explored further below in relation to offence-specific sentencing guidelines.

The SGC’s (2004) guidance rules out any scenarios whereby intoxication might serve to mitigate the offending behaviour, or indeed be deemed neutral (see Dingwall and Koffman, 2008). This is because it is deemed that the offender ought to have foreseen the adverse effects intoxication might have had on their behaviour/decision-making. So, rather than rendering the individual subject vulnerable – say to poor decision-making – or wider questions about the distribution of disadvantage and harm associated with substance use (Brown and Wincup, 2020), the underlying assumption is that ‘offenders who voluntarily become intoxicated are more culpable, presumably because they realise (or ought to realise) that this may lead to uninhibited conduct with unpredictable results’ (Ashworth, 2015: 172). Offenders are thus held more culpable owing to their earlier choice to become intoxicated, prior to the offence itself (Dingwall and Koffman, 2008).

There is sparse explicit rationale given for this position (Dingwall, 2006; Dingwall and Koffman, 2008). However, the timing of the first directive (2004) – shortly after the turn of the century – follows a period of public and political concern with the increase of ‘binge drinking’ and associated public crime and disorder that accompanied this in towns and city centres across England and Wales (see Haydock, 2014). This political discourse centred on the ‘irresponsible consumers’ of alcohol, and understated any role played by the liberalisation of licencing and planning regimes that were driven by market imperatives and were further facilitated via the Licensing Act 2003 (in force from 2005) that allowed night-time economies in towns and cities to grow and alcohol to flow freely therein (Haydock, 2014; Hayward and Hobbs, 2007). As such, the legislative directive concerning intoxication and culpability seen in the sentencing guidelines mirrors the cultural politics of a time in which England and Wales were thought to be experiencing an ‘epidemic of binge drinking’ (Twigg and Moon, 2013) in which undesirable drinkers associated with crime and disorder needed to be brought under control (Haydock, 2014), and it reflects the stronger tendency for alcohol policy at the time to characterise drinkers as rational and responsible (see Haydock, 2014).

Having located the blame with ‘poor’ choices of the individual and to a lesser extent with any wider practices, cultures, contexts and conditions, the issue is constituted as a problem of criminal justice in which unruly individuals require punishment based on ideals like autonomy and freedom of choice. Consequently, in practice, much of the responsibility for responding to incidents of alcohol-related crime and problematised ‘irresponsible drinkers’ fell upon the police and criminal courts. This way of representing the problem of alcohol’s involvement in crime and the culpability of the drinker can be seen in all sentencing guidance that follows. Here, and in subsequent guidance, alcohol’s role in crime is characterised as causal and symptomatic of a broader ‘malevolent assumption’ (Collins, 1982) that prevails in policy responses, especially those responding to binge drinking and associated crime and disorder that dominated at the time.

The specific sentencing directive pertaining to intoxication holds defendants more culpable because of their intoxication and specifies that intoxicated defendants should be treated more harshly. Dingwall and Koffman (2008) suggest that ‘there may be strong utilitarian reasons for treating intoxication as an aggravating factor, particularly for those who have previously offended while intoxicated’ (Dingwall and Koffman, 2008: 345). In this sense, mandating intoxication as aggravation in sentencing serves to fulfil the communicative aspect of punishment; namely to condemn the drunken offender’s conduct. And sentencing directives on the matter of intoxication thus represent a political tool through which to deter prospective offenders and to be seen as responding robustly to the ‘problem’ of alcohol-related [violent] offending.

However, as Dingwall and Koffman (2008, emphasis added) have noted in this regard, ‘general deterrence relies upon a degree of rationality on the part of potential offenders’ (p. 336). And this position constructs individuals as rational agents with choice, control over and foresight about the potential effects of their drinking, with the choice to engage in alcohol consumption to the point of intoxication represented as the ‘problem’. This assumes awareness and foresight about the apparently inherent prospects for increased criminality – something that is scientifically disputed, but legally constituted. Yet, consideration of whether a presumption of rationality is reasonable is particularly pertinent when it comes to alcohol, as it is widely used as an intoxicant and is available for consumption by many in a range of settings (as opposed to illicit drug consumption as their possession is prohibited in law).

Reproducing and reinforcing alcohol intoxication as aggravation

Despite the considerations and complexities detailed above, when issuing further offence-specific guidelines,⁵ the Sentencing Council upheld the legitimacy of the earlier SGC’s (2004) direction and reinforced the earlier construction of the ‘problem’ as one of individual culpability and alcohol’s (and drugs’) aggravating role in criminal behaviour. Indeed, the direction that the ‘commission of offence whilst under the influence of alcohol/drugs’ (e.g. Sentencing Council, 2011) forms one of several aggravating factors that may be considered in arriving at a suitable sentence was reproduced in many of the Sentencing Council’s offence-specific guidelines. These guidelines served to cement, uphold and further reinforce the concept of a malevolent assumption (Collins, 1982) concerning the presence of alcohol intoxication, underscoring the idea that intoxication is a factor indicating higher culpability across a range of different crime types. In so doing, they circumvented due consideration of the myriad roles that alcohol and drugs can play across a range of crime types and oversimplified the relationship between substance use and crime in favour of policy parsimony.

It is well established that the link between alcohol use and crime is complex and that the impact of alcohol varies across different crime types. Rather than being the sole cause of crime, the research evidence suggests that alcohol can impact upon the aetiology, nature and severity of crime (Felson et al., 2008; Graham et al., 2011; Lipsey et al., 1997; Taylor et al., 2010), and it has identified stronger associations with violent crime than with other crime types (Bennett and Holloway, 2010; Bromley and Nelson, 2002; Public Health England (PHE), 2016). That is, the relationship between alcohol and crime is far from straightforward and alcohol can be variously implicated in crime.

Producing drinking dichotomies

To further assist sentencers in interpreting the sentencing guidelines, the English and Welsh Sentencing Council later (2019a) issued expanded explanations to practitioners on a range of factors influencing sentencing, including intoxication stemming from both legal and illegal substances. In relation to intoxication, this reads as follows:

The fact that an offender is voluntarily intoxicated at the time of the offence will tend to increase the seriousness of the offence provided that the intoxication has contributed to the offending. This applies regardless of whether the offender is under the influence of legal or illegal substance(s). In the case of a person addicted to drugs or alcohol the intoxication may be considered not to be voluntary, but the court should have regard to the extent to which the offender has sought help or engaged with any assistance which has been offered or made available in dealing with the addiction. An offender who has voluntarily consumed drugs and/or alcohol must accept the consequences of the behaviour that results, even if it is out of character. (Sentencing Council, 2019a)⁶

While earlier guidance was limited to direction concerning the presence or absence of intoxication and favoured clarity and parsimony, the expanded explanation acknowledges some of the additional complexity of the relationship between alcohol intoxication and offending behaviour, for example, by highlighting the contribution that intoxication appears to have made to the offending and by referring to the voluntary nature of any intoxication. However, direction as to when this criterion is applied, and the relative weight afforded to this factor in sentencing are not clarified. Rather, the level of uplift to be applied is discretionary and to be determined based on the details of the case and interpretation of the guidelines and recent expanded explanations.⁷

This further guidance highlights additional assumptions underpinning the construction of the alcohol-crime problem in English and Welsh sentencing policy. As well as emphasising intoxication and offending behaviour happening at the same time, it reveals the importance placed on voluntary intoxication – namely the choice to become intoxicated – and construal of the behaviour as a consequence of this consumption. In so doing, it categorises intoxication owing to dependence as involuntary in nature and underscores the construction of the intoxicated subject who is not dependent as a rational decision-maker with conscious volition. As with drug use, the neoliberal rational actor is thus charged with self-regulation. Consequently, those who choose to drink irresponsibly are characterised as deviant ‘subjects’ (Bonham and Bacchi, 2017) and as distinct from dependent drinkers, with each to be governed by a specific set of responses (Bacchi, 2023).

The singling out of voluntary intoxication is accompanied by some guidance as to what factors can be considered in determining whether intoxication is voluntary. In so doing, the Sentencing Council (2019a) identifies a ‘diagnostic’ (Bacchi, 2023) dichotomy between recreational and dependent drinkers (assumed to be self-evidence and uncontroversial, see Bacchi, 2018), potentially exempting the latter from responsibility for their decision to engage in drinking and thus from accountability for their actions (also the case in relation to drugs in the Australian context; Seear and Fraser, 2014). In representing these two types of drinkers as inherently incompatible and thereby wedding itself to a biomedical/clinical ‘alcoholism’ framework (see Morris et al., 2023), the Sentencing Council ignores the tensions inherent in the consideration of agency and volition in intoxicated comportment and among persons with substance use disorders, to which other authors have routinely pointed (e.g. Keane et al., 2011; Lancaster et al., 2015; Seear and Fraser, 2014; Sinclair-House et al., 2020).

The expanded explanations thus primarily reproduces the problem of alcohol and crime as one of ‘irresponsible’ and ‘recreational’ drinkers, implying that these subjects are unable to keep their alcohol consumption to ‘acceptable’ levels (cited in Bacchi, 2015: 133), where the assessment of what is acceptable necessarily relies upon ‘ethical and moral judgements about life-style, conduct and priorities’ (Keane et al., 2011: 876). However, in contrast to the ‘recreational’ drinker, the dependent drinker is simultaneously constructed as vulnerable but, nevertheless, requiring ‘disciplinary mechanisms to regulate (their) behaviour’ (Brown and Wincup, 2020: 1) albeit under the guise of (medical) ‘help’ rather than punishment (see Kammersgaard, 2023).

This distinction between types of drinkers in the sentencing guidance also resonates with the dichotomy identified by Lancaster et al. (2015) between dependent drug users and those categorised in drug policy as otherwise ‘unproblematic’ users (p. 620). They argue that this dichotomy:

constrains an alternative understanding of the transient or shifting nature of use between those two states over time, and in various settings, within the experiences of one individual. That is, the notions of a ‘continuum of use’ and of drug use as a complex sociocultural practice are silenced.

The current analysis concurs with the assessment of both Lancaster et al. (2015) and Bacchi (2009) that the problem is produced as one of ‘irresponsible’ and ‘uncontrolled’ alcohol (or drug) use, and that this focus on those engaged in ‘irresponsible’ and ‘uncontrolled’ alcohol use presupposes a particular subject who chooses not to regulate their alcohol consumption – and as distinct from ‘mainstream’ citizens (Brown and Wincup, 2020). As in Bacchi’s (2015) analysis, ‘this subject is presumed to lack either the willpower to resist the alcohol on offer or the strength of character to ignore peer pressure’ (p. 136).

However, in the words of Lancaster et al. (2015), this construction of ‘irresponsible’ and reckless alcohol consumption ‘fails to problematise multiple barriers which may contribute to poor health outcomes and lack of participation such as poverty, equity of access, stigma and discrimination’ (p. 621). As with substance use policy more generally, this underplays ‘the role of material inequalities and social divisions’ in the uneven distribution of harm and the fact that substance using populations will also likely ‘belong’ to multiple vulnerable groups (Brown and Wincup, 2020: 1). Nor does it acknowledge the widespread availability of alcohol as a contributor to crime (see Broad and Lightowlers, 2015) or the diversity of motives and reasons for drinking.

The expanded explanation concerning intoxication aspires to acknowledge the myriad reasons for drinking and various drinking patterns (use disorders). However, in favouring legal parsimony over social complexity, it constitutes only two types of drinkers (dependent and non-dependent drinkers) – reminiscent of the binary categories of ‘choice’ and ‘compulsion’ identified by Lancaster et al. (2015: 621) – and so fails to account for the multifaceted nature of alcohol use, addiction and diverse (non-linear) recovery pathways (European Monitoring Centre for Drugs and Drug Addiction (EMCDDA), 2013; Morris et al., 2023). This precludes any consideration of the ‘degree’ (strength and severity) of addiction and the involvement of intra-individual and environmental factors (EMCDDA, 2013), and it tends towards denying rationality and self-control to those with dependence (Keane et al., 2011). Moreover, by explaining intoxication as either voluntary or involuntary, further implicit assumptions are that: (1) persons other than those identified as dependent have full control over their drinking and are engaged in such as ‘recreational drinkers’, and (2) pleasure is not a legitimate motivation for engaging in alcohol drinking or drug taking (see also Bacchi, 2015; Kammersgaard, 2023).

While distinguishing between distinct drinking populations may be considered progressive in recognising diversity among people who drink, Brown and Wincup (2020) argue, in relation to those who use drugs and the concept of vulnerability, that – despite good intentions – labelling special populations in this way ‘often becomes unintentionally pejorative with stigmatisation as a potential subjectivation effect’ (p. 5). They go on to illustrate how such distinctions are also often made based on professional assessments of risk rather than reflecting the subjective experience of the individual or giving due attention to structural inequalities (Brown and Wincup, 2020). As such this expanded explanation can be considered a piecemeal enhancement ‘to support those seen as the most ‘at risk’/deserving’ but one that may also increase ‘exclusionary governance mechanisms and social control in the name of protection’ (Brown and Wincup, 2020: 7). Indeed, as we shall see below, the dichotomy between dependent and non-dependent drinkers funnels people into varied monitoring and treatment pathways (Lightowlers, 2025).

Producing polarised practice

The expanded guidance also distinguishes further between persons addicted to drugs or alcohol who are deserving/undeserving of leniency in sentencing considerations. The guidance notes that such leniency ought to be extended only to those who have sought help or engaged with assistance in addressing their alcohol and/or drug problems. That is, leniency is only afforded to those engaging with the dominant abstinence ‘recovery’ ideal which operates within criminal justice more broadly when it comes to governing alcohol and drug consumption (Lightowlers, 2024). In this sense, not only do the sentencing guidelines construct the problem as one of alcohol’s causal role in crime combined with the choice to engage in alcohol intoxication, but they further construct ‘ideal defendants’ (Field and Tata, 2023), who are deserving of leniency only if they are seen as both medically impaired and championing abstinence-based ‘recovery’.

This point is echoed by the express mention of specific mitigating factors in the sentencing guidelines in which ‘determination and/or demonstration of steps taken to address addiction or offending behaviour’ are constituted as factors reducing seriousness or reflecting personal mitigation (Sentencing Council, 2011). This is accompanied by an expanded explanation which reads:

Where offending is driven by or closely associated with drug or alcohol abuse (for example stealing to feed a habit, or committing acts of disorder or violence whilst drunk) a commitment to address the underlying issue may justify a reduction in sentence. This will be particularly relevant where the court is considering whether to impose a sentence that focuses on rehabilitation.

Similarly, a commitment to address other underlying issues that may influence the offender’s behaviour may justify the imposition of a sentence that focusses on rehabilitation. (Sentencing Council, 2019a)

Further 2024 amendments to the guidelines add clarification that this mitigation can also be considered where ‘offenders’ efforts to access help, especially when it has been delayed for reasons outside of their control’ reading:

(including where the offender has actively sought support but, for reasons outside their control, it has not been received). (Sentencing Council, 2024: 24).

This concedes the considerable challenges that people may face in sourcing and accessing support in the current context where demand for alcohol treatment far outstrips supply both in the community and criminal justice settings (Sondhi et al., 2020). However, it also reinforces that mitigation is only afforded to those striving towards abstinence and does not acknowledge that access to support will also vary based on economic means and cultural background, among others.

More recently, the Sentencing Council (2025) significantly revised their Imposition of community and custodial sentences guideline and added further nuance concerning alcohol’s influence on offending behaviour and the care that needs to be taken in determining eligibility for alcohol-related sentence requirements. Therein the Sentencing Council (2025) underscored the distinction between dependent and non-dependent drinkers in determining eligibility requirements for alcohol-related sentence conditions (designed to coerce the subject into abstinence). In imposing a community-based sentence, the former are eligible for treatment (in the form of an Alcohol Treatment Requirement⁸) to facilitate their rehabilitation, whereas the latter are extended additional punishment (denial of pleasure) and risk management in the form of a drinking ban (via the Alcohol Abstinence Monitoring Requirement, AAMR⁹). While the Sentencing Council themselves are not responsible for the nature and form of these requirements, rather these are enabled via provisions in Section 212 of the 2003 Criminal Justice Act and the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Commencement No. 14) Order 2020, respectively, this highlights how the categorisation of dependent and non-dependent drinkers exists and persists in criminal justice policy more generally (Lightowlers, 2024). Moreover, sentencing guidelines nevertheless operate as ‘prescriptive texts’ (Bacchi and Goodwin, 2016) guiding intervention approaches, among others, aimed at subjects whose offending is alcohol-related (p. 34).

Sentencing policy silences in the problematisation of alcohol intoxication (in crime)

By singling out causation and foregrounding volition and culpability/responsibility in the constitution of alcohol’s role in offending, considerations of any circumstances where alcohol’s involvement might serve as a neutral or a mitigating factor are silenced. This approach constrains alternative understandings of a range of contexts in which intoxication interacts with the setting and actors present to produce alternative influences on offending (Lightowlers et al., 2020). It also precludes any consideration of the myriad reasons why a defendant might be engaged in alcohol consumption; that is, it does not engage with the fundamental question of why a defendant might be drinking.

The guidelines’ silence on alternative ways of conceptualising the role of alcohol intoxication suggest that such alternative accounts are not entertained when arriving at a sentence. However, given its status as non-statutory aggravation, the discretion of whether to invoke consideration of alcohol intoxication in arriving at a sentence remains. This affords sentencers an opportunity to disregard the presence of intoxication or to foreground and/or prioritise consideration of other salient features/elements of the offence in arriving at a sentence. This raises questions as to whose intoxication is included/excluded in these decisions ‘on what basis, and with what effects’ (Brown and Wincup, 2020: 2). Indeed, alcohol intoxication can be sidelined as part of sentencing considerations, so that its presence may indeed be akin to a neutral (or indeed mitigating) factor. The choice of when to ‘apply’ aggravation for intoxication and how much this ought to amplify any sentence thus remain potential sources of disparities in sentencing. Efforts to respond to the former were made in issuing guidance on mitigation for those dependent upon alcohol and in distinguishing how the guidelines ought to relate to voluntary as opposed to involuntary intoxication. Guidelines note that alcohol use by those dependent upon alcohol may not necessarily be understood as voluntary. This consideration is left to sentencers and can be informed based on assessments by the Probation Service where such are available (such as in a pre-sentence report). However, the potential source of disparities (namely the level of uplift to be applied to a sentence owing to the presence of alcohol intoxication) is not explicitly addressed by the guidelines and is also left to sentencers to determine.

Despite aiming to address disparities in sentencing, the guidelines do not address how alcohol and harms are disproportionately clustered in low socio-economic groups (Beard et al., 2016; Lightowlers et al., 2023), how the impact of intoxication on sentence outcomes is experienced differently along the lines of gender (Lightowlers, 2019) or how mitigation associated with addressing addiction may be racially determined (Guilfoyle and Pina-Sánchez, 2025). And so, assessments by sentencers about whether the alcohol consumption and level of intoxication were relevant and how much they ought to aggravate the offence are likely to be shaped by moral judgements by sentencers based on assessments of drinking related to gender, ethnicity and class. Consequently, as in drug policy, the

construction of the ‘responsibilised’ individual [. . .] silences perspectives such as those focused on the “social determinants of health”, which acknowledge the social, economic and cultural conditions which influence health outcomes and direct prevention efforts towards societal and institutional interventions (rather than towards the individual). (Lancaster et al., 2015: 621)

As such, disparities or unjust application through prejudice and discrimination may result (Lightowlers, 2022).

Rather than focusing on relevant contexts, legal responses, such as sentencing policy, frame the ‘problem’ as one of criminal justice and unruly individuals requiring punishment. Such responses locate blame primarily with choices of the individual and attribute less importance to wider practices, cultures, contexts and conditions such as market forces and alcohol availability. That is, they are unlikely to take the view that solutions to problems of alcohol and crime should also involve addressing problems associated with industrial growth and licencing regulation (Haydock, 2014), or to see them as public health issues to be addressed by population-level intervention, such as reducing alcohol availability (Babor et al., 2010). The focus on individual responsibility discourages reflection on social–structural factors that may mean that people from certain groups are more likely to have their alcohol consumption regulated (see Haydock, 2014). As such, redistributive and social justice ambitions are precluded in favour of advancing administrative or ‘procedural’ justice ideals (see Lightowlers, 2019).

Given the implicit law-and-order framing of the problem of intoxication, it is interesting that the sentencing framework for intoxication owing to either alcohol and/or drugs sidesteps any consideration of the fact that engagement in illicit drug use potentially represents additional illegality over and above intoxication stemming from the consumption of alcohol as a legal commodity.

Discussion and conclusion

Bacchi’s (2009) WPR approach was applied to analyse the implicit representations in sentencing policy aimed at directing sentencers on how they ought to consider the role of alcohol intoxication in offending when arriving at sentencing decisions. Applying this framework created an opportunity to critically reflect on the taken-for-granted approach to sentencing crimes involving alcohol intoxication and the presuppositions/conceptual premises underlying sentencing guidance for crimes involving intoxication and to probe the character of the alcohol-crime problematisation that the guidelines present. By charting the development of sentencing guidelines relating to alcohol intoxication at specific points in their genesis, the analysis highlights the authority of these guidelines and the way in which they legitimise an uplift in sentencing for intoxicated offenders and constitute the problem as one of voluntary and irresponsible (and so dangerous or more blameworthy) consumers of alcohol. In so doing, the analysis reveals the prominence of judicial ideals like objectivity, autonomy and freedom of choice as well as showing how these official representations cement simplistic narratives around alcohol and crime and the people involved in them, which have become entrenched and reproduced within sentencing policy development over time. In illuminating how alcohol has been constituted as a problem of aggravation in sentencing policy, the article responds to Bacchi’s (2015: 131) earlier call for researchers to pay increased attention to the meaning and implications of ‘alcohol problems’ as ‘a contentious and highly political concept’ and to the ‘considerable disagreement about the impact, if any, that intoxication should have’ on sentencing (Dingwall and Koffman, 2008: 337). This article has served as a prompt to reflect on the validity of the position adopted by the Sentencing Council and to ask whether there is sufficient evidence of consensus for this approach. It also questions the ontological constitution of alcohol intoxication in sentencing ‘solutions’ as methods of regulating those whose offending is alcohol-related (Brown and Wincup, 2020).

While the Sentencing Guidelines Council’s (2004) Overarching Principles: Seriousness, served to identify alcohol intoxication as a key consideration in sentencing that spans a range of offence types, the Sentencing Council’s guidance that followed underscored and reinforced the mandate that alcohol intoxication renders an offender more culpable for their offending. In this framing, there is a tendency to downplay the myriad reasons for drinking, the variety of relationships with alcohol and the ways in which these can shape behaviour as well as the uneven distribution of alcohol-related crime and harm (Bryant and Lightowlers, 2021; Lightowlers et al., 2023). Drawing on the WPR approach, the argument is advanced that sentencing policies concerning intoxication construct the problem of alcohol’s involvement in crime through the ways in which they seek to address and deal with such incidents. In general, these policies have been shown to represent alcohol consumption as a morally laden behaviour in which individuals choose to engage and assume liability for their subsequent behaviour and decision-making. That is, the intoxicated subject is represented as assuming liability for their actions and the decision to engage in alcohol consumption is considered voluntary. In so doing, the policies distinguish between those with and without alcohol ‘problems’, suggesting that the former may be involuntary consumers of alcohol, potentially mitigating their responsibility and rendering them more vulnerable that the latter. However, such mitigation is only seemingly extended to dependent individuals where they conform to stereotypes concerning medically dependent drinkers and ‘ideal defendants’ who have committed to abstinence recovery ideals. In such circumstances, these drinkers are considered deserving of care and treatment as opposed to punishment. This potentially presents a practical challenge, as the contradictory logics¹⁰ associated with the therapeutic versus criminalising responses that follow from such representations speak of different ideals and purposes of punishment, which still need to be navigated, and which hold potential for disparities in approach (see Tiger, 2011). On one hand, the sentencing guidance calls for treatment and on the other it calls for punishment – with dependent and non-dependent drinkers representing different opportunities to intervene. However, many cases before the court may not fall neatly into the dichotomous drinking categories constructed in the sentencing guidance. Responses to the ‘problem’ of alcohol intoxication in crime could therefore polarise along the lines of punishment and rehabilitation ideals and/or conservative and progressive sentiments.

In relation to intoxication, this article holds the Sentencing Council accountable as involved in setting the ‘problem’ of crime and sentencing to be addressed. This analysis exposes the Council’s power to determine salient sentencing factors and what their impact should be. This is particularly important owing to the relatively new status of the Sentencing Council as an independent arm’s-length body of the Ministry of Justice, which has given it the opportunity to set the agenda. Moreover, as other jurisdictions increasingly look to curtail discretion and to structure decision-making by introducing sentencing guidelines to bring about greater consistency, they have looked to developments in England and Wales to inform their approach (Roberts, 2019). Given this powerful position, and as Bacchi (2015) herself advocates, this article questioned – rather then uncritically adopted – the status quo. As such it encourages consideration more broadly of competing representations of alcohol use and intoxication in sentencing policy with a view to stimulating the criminological imagination in this regard. This is all the more important because policy tends to favour continuity unless disrupted by key events (see Cairney, 2012), rather than responding to gradual changes in trends regarding violence and drinking behaviours that have been occurring since the policy agenda was originally set at the turn of the century.

Footnotes

Acknowledgements

Thanks are given to Professor Karen Duke for feedback on an earlier version of this paper.

ORCID iD

Carly Lightowlers

Funding

The author disclosed receipt of the following financial support for the research, authorship and/or publication of this article: This work was supported by the British Academy grant award MCFSS23\230024.

Declaration of Conflicting Interests

The author declared no potential conflicts of interest with respect to the research, authorship and/or publication of this article.

Notes

Author biography

Carly Lightowlers is a Reader in Criminology with experience as an academic as well as conducting research in local and central government settings. Her research is primarily concerned with alcohol-related crime and the processing of such cases through the courts, as well as the unequal distribution harm that can result.

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Exploring ‘problematisations’ of alcohol intoxication in sentencing

Abstract

Keywords

Background

Conceptual framework and methodology

Sentencing as moral communication

Sentencing guidelines

Analytical framework

Findings

Constituting alcohol intoxication as aggravation

Constructing the ‘problem’ of alcohol intoxication in crime

Reproducing and reinforcing alcohol intoxication as aggravation

Producing drinking dichotomies

Producing polarised practice

Sentencing policy silences in the problematisation of alcohol intoxication (in crime)

Discussion and conclusion

Footnotes

Acknowledgements

ORCID iD

Funding

Declaration of Conflicting Interests

Notes

Author biography

References