Understanding Legal Intention Concepts

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It is important, therefore, when analysing individual crimes, to interpret whether the fault required by the offence is subjective or objective. As a rule of thumb, the more serious the crime the more likely it is that subjective fault will be required although, in truth, the difference between subjective and objective fault may be more apparent than real.

Under our society’s present practices of blaming, blame is a function both of the harm which conduct produces and the fault attributable to the defendant for bringing about that harm. Both harms and fault are differentiated vertically, according to an ascending scale of seriousness. An example of harms vertically differentiated are crimes of violence, ascending in seriousness from minor harm (s *) to serious harm (s *) to death (homicide). Mens rea also operates to structure harms vertically. For example, section * of the Offences Against the Person Act makes it an offence to cause someone grievous bodily harm (GBH) with intent to cause GBH.

Section * of the same Act makes it an offence simply to infl ict GBH maliciously. The former state of mind is singled out as being more culpable than the latter and the offence carries a higher maximum sentence. The mens rea words contained within the defi nition of offences refl ect degrees of choice. They are not, strictly speaking, signifi ers of villainy or bad character. A person intends to kill for the purpose of the law of murder, whether she does it to get her hands on the deceased’s money or, at the deceased’s request, to put a stop to his dying agony. This supports the view that people tend to be punished for their choices rather than their character.

If their character is not adequately reflected in their choice, this is a reason to mitigate sentence, not to excuse entirely. The majority of crimes of mens rea have intention and recklessness as alternative fault elements. It is the fact of choosing to do harm which thus fixes a person with responsibility rather than the degree of commitment shown to the outcome. Where intention is a sole mental element this will often be because having the relevant intention is constitutive of the wrongdoing prohibited by the offence. For example, taking a person’s property without permission only becomes a criminal offence if it is done with the intention of depriving the owner permanently of the property.

Judicial activity in the fi eld of mens rea shows a somewhat schizophrenic attitude towards the mens rea words and their meanings. Occasionally judges insist upon a technical meaning to an everyday word. On the other hand, judges and academic commentators often express the preference that the mens rea words carry their everyday meaning. The most compelling reason for this is that by allowing words such as intention, recklessness and dishonesty to embody popular usage, citizens will be in a better position to pitch their conduct in accordance with the rules. If the meaning of dishonesty in the law of theft, for example, were to carry some arcane legal nuance, violence might be done to the reasonable expectations of ordinary citizens.

If Adam’s claim is to be believed he cannot be guilty of murder, which is a crime of intention (subjective fault). However, can we believe him? The evidence stacks up against him. Not only was he driving at full tilt towards Eve, he changed direction just before hitting her. The prosecution may think that this is good enough evidence to show an intention to kill. The facts seem to speak for themselves. The prosecution might well therefore charge with murder, relying on the jury’s good sense to infer a subjective state of mind (intention) from objective facts (manner of driving).

In other words Adam may well be found guilty of murder whether the fault element in murder is objective or subjective. We tend to ignore what people say they intended or foresaw, when this is out of step with our experience. It should be noted that the vast majority of criminal offences do not require proof of fault, objective or subjective. Many traffi c offences, say, are constituted simply upon proof of the relevant conduct, for example parking in the wrong place or failing to display a tax disc. This is out of step with the ethic discussed earlier that censure and punishment should be deserved and should be limited to those who are blameworthy. Indeed it may serve to undermine this ethic.

. The position is complicated by the fact that Parliament often will not indicate one way or the other whether an offence is one of strict liability or requires proof of fault. In such circumstances, as will be seen in the next chapter, the courts may nevertheless interpret the provision as requiring a fault element. So, in B v DPP , the accused was charged under section * Indecency with Children Act * with inciting a girl under * to commit an act of gross indecency. The accused claimed that he believed the girl to be over *.

The position is complicated by the fact that Parliament often will not indicate one way or the other whether an offence is one of strict liability or requires proof of fault. In such circumstances, as will be seen in the next chapter, the courts may nevertheless interpret the provision as requiring a fault element. So, in B v DPP , the accused was charged under section * Indecency with Children Act * with inciting a girl under * to commit an act of gross indecency.

In theory, intention is central to a cogent notion of criminal responsibility. What marks human action off from other events in the natural world like the movement of the stars and the snarling of dogs, is that our action has meaning for us. We have intentionality. If we see a human being raise a gun to his eye, aim it at another person, and pull the trigger we (think we) know what he means by this action. We know he intends to shoot, if not kill the victim. He may fail, but we know what is in his mind. If we saw a monkey do likewise we would not know what was in the monkey’s mind. We cannot plausibly assert, therefore, that the meaning to be attributed to the monkey’s behaviour is the same as in the former case. We have no concept of monkey intentionality. Shooting the gun for the monkey, then, may mean nothing. It may be just an incident of ‘monkeyness’, like fi re is an incident of volcanoes.

From one point of view, therefore, if it is intentionality which separates our actions from the behaviour of monkeys and volcanoes then it is intentionality which forms the basic building block of choice upon which criminal responsibility is founded. Intention is the obvious and clearest form of mental attitude grounding responsibility, but not necessarily the only one. It would make no sense for a criminal justice system only to punish those harms which were specifically aimed at. There must be space for punishing examples of culpable risk-taking, for example.

‘Intention’, like other mens rea words, (presumptively) refl ects a degree of fault. Ideally, therefore, the criminal law incorporates a meaning which does the job required, in this case supporting a rational system of blame and punishment. Such a system, as we have seen, should enable crimes involving similar harms to be differentiated consistently according to the defendant’s mental element. For instance, it should enable murder (a crime of intention) to be distinguished from less serious killings. With this former crime in mind for purposes of illustration, what is it, then, to intend a consequence?

In everyday speech intention is used coextensively with words such as ‘aim’, ‘reason’, ‘desire’ and ‘purpose’. A yet more common synonym is the word ‘mean’. We intend whatever we mean to do. We do not intend what we do not mean to do. Every child knows this and considers it the ultimate ‘knock-down’ argument against a threat of punishment. This represents the core meaning of intention, commonly described as direct intention. In Mohan , a case on attempt, intention in this focal sense was described as ‘a decision to bring about, insofar as it lies within the accused’s power . . . (the relevant consequence) no matter whether the accused desired the consequence or not’. Antony Duff has provided a test for characterising this state of mind. The test is whether a given actor would treat his actions as a failure if the relevant consequence did not occur.

A person’s direct intention can be determined without reference to his likelihood of success. If A’s reason for fi ring a gun at B is to kill B he intends to kill B, even though he is an appalling marksman and realistically assesses his chances of success as only one in a hundred. What a person intends obliquely is, however, only capable of being determined by reference to what he foresees. Where he foresees the consequence as certain, he intends it. If, without desiring it, he foresees it to a lesser degree than certainty, say, as highly probable, we have less cause to designate his state of mind as intentional as to the outcome. Deliberate risk-taking of this character may be culpable – it may be recklessness – but it seems too far from intention’s core meaning to count as intention. It is, then, important to understand the difference between foreseeing a consequence as (highly) probable and foreseeing it as practically certain.

Accordingly, the House of Lords held in * that a jealous lover who poured petrol though a letterbox, knowing that her lover’s wife and children were inside the house, intended to kill them, whatever else she may have meant to achieve, if she foresaw this as likely. Two obvious reasons underlie this decision. The first is the problem of proof. If we can never know for sure what Mrs Hyam’s purpose was, at least we can have a pretty good idea about what she thought would probably happen. We can presume, since she is an ordinary person, that she intended whatever she thought likely to happen. The second is the question of culpability. People who deliberately court risks are often just as culpable as those who act purposively

Lord Diplock’s reasoning was as follows: . . . no distinction is to be drawn . . . between the state of mind of one who does an act because he desires it to produce a particular evil consequence and the state of mind of one who does the act knowing full well that it is likely to produce that consequence although it may not be the object he was seeking to achieve by doing the act. What is common to both these states of mind is willingness to produce the particular consequence and this, in my view is . . . (intent). In essence this statement reduces to the following (fallacious) proposition. A person who willingly courts the risk of a consequence occurring is as blameworthy as a person who intends a consequence, since he has it in his power to prevent that harm occurring.

who intends a consequence, since he has it in his power to prevent that harm occurring. Therefore, a person who willingly courts the risk of that consequence occurring, intends that consequence. The problem with this approach is twofold. First, it dresses up a clearly technical meaning of intention in the guise of an everyday meaning. The approach does not refl ect a consistent everyday usage and, if judges were truly so interested in what intention meant in everyday speech, the easiest way to incorporate such a meaning would be to leave the meaning to the jury’s own good sense. The second is that the technical meaning is inadequate for the task set, namely to ensure that people receive the appropriate criminal label for their wrongdoing

Lord Diplock was right to say that ‘willingness’ (or choice) to produce a particular evil consequence is central to a cogent notion of intention. However, it is also central to a cogent notion of recklessness and this must render the broad defi nition inadequate if a distinct line is to be maintained between crimes of intention (such murder) and crimes of recklessness (such as manslaughter). There is a clear moral difference between deciding to kill someone and deciding to endanger their life. In short, although Mrs Hyam is the kind of person we might wish to convict of murder because she is so wicked, the test adopted to ‘catch her’ would also ‘catch’ a lot of people we might prefer to hold guilty of manslaughter – the quintessential crime of risk-taking. In one situation only is it plausible to treat deliberate risk-taking as a form of intention, namely where the analytical difference between deciding to kill someone and deciding to endanger their life breaks down

It may be helpful to summarise the major points so far. A consequence can be intended, it has been suggested, even where not desired for its own sake, as long as a decision has been made to bring it about. This will normally follow from the fact that a consequence is foreseen as a practically certain side-effect of what the actor is aiming to achieve. Everyday usage is not entirely cogent, however, since it is apt to take into account the reasons prompting a person to action. Where those reasons are deemed good ones, even consequences foreseen as certain may be deemed unintended. Where they are deemed bad ones, consequences foreseen as mere probabilities may be deemed intended If transported wholesale into the legal sphere, this could lead to inconsistency and injustice in cases where the jury approve or disapprove of the agent’s reasons for acting.

‘Intention’ in the legal sphere, as in everyday usage, has a job to perform. That job is not simply to allow juries to convict people of crimes they think deserving, but to ensure that people are convicted of the right crimes. To fulfi l this job, intention must bear a meaning distinct from that conveyed by other mens rea words.

The above discussion makes clear that in everyday usage a person’s motive may sometimes be taken into account in determining his intention. In theory, this should not be the case in the criminal sphere. If punishment attaches to people’s choices rather than their character , the question why a person formed an intention to offend should make no difference to criminal liability. For instance, in Lynch v DPP the House of Lords held that a person who took part in a killing because his life was threatened if he did not, still intended to take part. He was like the man visiting the dentist. His desire to escape from one source of agony led him to embrace another sort. Having the intention to escape his own death was quite consistent with forming the intention to take part in killing another.

He intended the full package. This should be compared with a similar case in which motive and intention were confused by the court. In Steane the defendant had made broadcasts for the enemy during the Second World War. He had done so under threats that, if he did not do so, his wife and children might be sent to a concentration camp. His conviction for doing acts likely to assist the enemy with intent to assist the enemy was quashed by the Court of Appeal on the grounds that where a person’s conduct provides evidence that he had either a lawful intention (protecting his family) or an unlawful intention (to assist the enemy), the jury should be allowed to determine the true intent. Steane is a puzzling decision

He intended the full package. This should be compared with a similar case in which motive and intention were confused by the court. In Steane the defendant had made broadcasts for the enemy during the Second World War. He had done so under threats that, if he did not do so, his wife and children might be sent to a concentration camp. His conviction for doing acts likely to assist the enemy with intent to assist the enemy * was quashed by the Court of Appeal on the grounds that where a person’s conduct provides evidence that he had either a lawful intention (protecting his family) or an unlawful intention (to assist the enemy), the jury should be allowed to determine the true intent. Steane is a puzzling decision.

Having the former (lawful) intent did not, unlike Case *, exclude having the latter (unlawful) intent. Rather it was really the motive for it. The defendant decided to help the enemy as a means to help his family. Perhaps he did not desire it, but, like the man visiting the dentist, he nevertheless decided it should happen. The view is widely held that the Court of Appeal, in their anxiety to show mercy in Steane , confused intention with motive. * A better solution, then, would be for liability to be negated on the ground of duress rather than lack of the necessary intention.

No such mistake was made in Cox. A doctor was found guilty of attempted murder (a crime of intention) for administering a fatal dose of drugs for the purpose of killing his patient. He did so for reasons of compassion, as the patient was suffering the excruciating agony of terminal cancer, but ultimately he acted so as to kill.

On the other hand, judges, like the rest of us, sometimes take into account a person’s reasons for acting where that reason is thought to be morally inconsistent with the criminal intention required by the crime defi nition. Compare Cox with the superfi cially similar case of Bodkin Adams . Here a doctor gave his patient, who was suffering excruciating pain, a dose of painkillers so large that it advanced the death of the patient. Devlin J ruled that as long as the dose was given for clinical reasons (pain relief), the doctor’s action, and his intent, were lawful. This intention, in effect, would not transmute into a criminal intent simply because a quicker death was foreseen as a virtual certainty

How can we reconcile this with the proposition that motive is irrelevant to intention? The answer is that a person’s reasons for acting may help us to decide what an actor was aiming at, but they do not form a separate basis upon which to make moral sense of his actions. If a person’s intention was to kill, such that he would experience a sense of failure if he did not succeed, that intention cannot be displaced by a knowledge of why he came to form that intention. On the other hand, as Adams shows, only by knowing why the defendant acted as he did can we know what he was trying to achieve. * In this sense at least, therefore, the proposition is misleading.

How can we reconcile this with the proposition that motive is irrelevant to intention? The answer is that a person’s reasons for acting may help us to decide what an actor was aiming at, but they do not form a separate basis upon which to make moral sense of his actions. If a person’s intention was to kill, such that he would experience a sense of failure if he did not succeed, that intention cannot be displaced by a knowledge of why he came to form that intention. On the other hand, as Adams shows, only by knowing why the defendant acted as he did can we know what he was trying to achieve. In this sense at least, therefore, the proposition is misleading.

It should be noted that judicial practice is by no means consistent on the issue of motive. The major reason for this appears to be that implementing a broad notion of intention which includes foresight of certainty is unpopular in cases such as Adams where the defendant’s motive was a good one. In such cases, a judge may be disposed to tell the jury that direct intention and nothing less must be established.

The modern history of intention in the criminal law shows a tension between a purposebased idea of intentionality and a broader meaning which includes foresight of certainty or even probability as an alternative form. This tension refl ects the diffi cult job the criminal law has to do, in particular deciding upon whether someone is punishable or not and, if he is punishable, for what crime. Another diffi culty, as we shall see, is that the majority of statements concerning the legal meaning of intention have occurred in the context of murder cases. It may be that the meaning of intention has been slewed, as a result, to support the policy goal that all ‘wicked’ killers be labelled as murderers irrespective of their actual state of mind.

In Moloney the trial judge, on the authority of Hyam , told the jury that Moloney had the necessary intention (to kill or do serious injury) ‘when he foresees it will probably happen,whether he desires it or not’. The House of Lords allowed the appeal, disapproving the trial judge’s direction and the Hyam test of intention. Acting in the knowledge that a consequence is probable or highly probable is not the same as intending that consequence. Quite apart from its pernicious infl uence on the law of homicide it was quite clear that for the quintessential crimes of intention such as attempts and wounding with intent to cause grievous bodily harm such a broad defi nition was inappropriate.

Lord Bridge said that whether a person intended a consequence or not was a matter for the jury, not a matter of defi nition, and only in exceptional cases (which this was not) should any guidance be given as to the meaning of intention, beyond the routine explanation that intention was different from motive. The exceptional cases referred to by Lord Bridge are cases where the evidence supports the conclusion that it was not the accused’s aim to kill.

In Moloney and a number of subsequent cases the courts have struggled to agree exactly what the jury should be told. One version holds that it should be told that knowledge of the certainty of the outcome is intention as a matter of law.