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Intention in Criminal Law

Published online by Cambridge University Press:  09 June 2015

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Intention is a central concept in our system of criminal liability. And in recent years it has been much discussed, both by lawyers and philosophers. However, there remain disagreements, and some unclarity. My purpose in this paper is to examine, and propose solutions to, the main problems concerning the concept of intention in the criminal law.

Research Article
Copyright © Canadian Journal of Law and Jurisprudence 1992

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I am indebted to Joseph Boyle and Antony Duff for their comments on an earlier draft of this paper. They saved me from many (if not all) errors and infelicities.

1. For discussion of “practical syllogisms” see Thornton, M.T., “Aristotelian Practical Reason” (1982 91 Mind 57.Google Scholar

2. See Davidson, D., “Actions, Reasons, and Causes,” in his Essays on Actions and Events (Oxford: Clarendon Press, 1980) at 34.Google Scholar

3. For discussion of the “validity” of practical syllogisms, see Thornton, supra, note 1, at 69–73.

4. Davidson, supra, note 2 at 147. Cf. Anscombe, G.E.M., Intention (Oxford: Blackwell, 1959) esp. at 3747.Google Scholar

5. Williams, G., The Mental Element in Crime (Jerusalem: Magnes Press, The Hebrew University, 1965) at 37.Google Scholar

6. See Mackie, J.L., “The Grounds of Responsibility,” in Hacker, P.M.S. & Raz, J., eds, Law, Morality, and Society (Oxford: Clarendon Press, 1979) at 176.Google Scholar

7. So Williams should have said that “intentional action” lacks significance; “intentional act” is perfectly correct.

8. Williams, G., Criminal Law: The General Part, 2nd. ed. (London: Stevens, 1961) 16 [hereinafter CLGP; supra, note 5, at 10;Google Scholar Williams, , Textbook of Criminal Law, 2nd. ed. (London: Stevens, 1983) at 74 [hereinafter TCL].Google Scholar

9. TCL, ibid.

10. Lang v. Lang, [1955] A.C. 402 at 428.

11. See, e.g., Smith, J.C. & Hogan, B., Criminal Law, 6th ed. (London: Butterworths, 1988) at 7880 [hereinafter S&H.]Google ScholarPubMed

12. Cf. Anscombe, supra, note 4 at 18–23.

13. CLGP, supra, note 8 at 49.

14. Bentham, J., An Introduction to the Principles of Morals and Legislation, ed. by Bums, J.H. & Hart, H.L.A. (London: Athlone Press, 1970) c. 8, s. 6: “Of Intentionality” at 86.Google Scholar

15. Austin, I., Lectures on Jurisprudence, 4th ed. (London: J. Murray, 1885) Lecture 19: “Intention” at 437.Google Scholar

16. Sidgwick, H., The Methods of Ethics, 7th ed. (London: Macmillan, 1962) at 202.CrossRefGoogle Scholar

17. Stephen, Mitchell, Richardson, P.I. & Buzzard, John H., eds, Archbold’s Pleading, Evidence and Practice in Criminal Cases, 42nd ed. (London: Sweet & Maxwell, 1985), para. 17–13 at 1162.Google Scholar

18. R.v. Moloney, [1985] 81 Cr. App. Rep. 93 at 106 [hereinafter Moloney].

19. TCL, supra, note 8 at 82–84.

20. Supra, note 5 at 12–13.

21. See text below accompanying notes 28f., on “inseparable” consequences.

22. Anscombe, G.E.M., “Modern Moral Philosophy” (1958) 33 Philosophy 1 at 11.Google Scholar

23. For discussion see Boyle, J. Jr., “Toward Understanding the Principle of Double Effect” (1980), 90 Ethics 527.CrossRefGoogle ScholarI follow Boyle, at 529, in regarding the Principle of Double Effect as a principle of justification. A. Donagan’s objection to the Principle, that the doctrine underlying all forms of the theory of the double effect is that what lies outside the scope of a man’s intentions in acting does not belong to his action, and so is not subject to moral judgement,” The Theory of Morality (Chicago: University of Chicago Press, 1977) at 164, is surely incorrect.Google ScholarPubMed

24. Grisez, , “Toward a Consistent Natural-Law Ethics of Killing,” (1970) 15 American Journal of Jurisprudence, 64 at 94.Google ScholarSee also Hart, H.L.A., “Intention and Punishment,” in Hart, Punishment and Responsibility (Oxford: Clarendon Press, 1968) at 123–24, and Donagan, supra, note 23 at 158–64.Google Scholar

25. Grisez, ibid, at 95; Fried, C., Right and Wrong (Cambridge, Mass.: Harvard University Press, 1978) at 23;CrossRefGoogle Scholar Katz, L., Bad Acts and Guilty Minds (Chicago: University of Chicago Press, 1987) at 187;CrossRefGoogle Scholar Duff, A., Intention, Agency and Criminal Liability (Oxford: Blackwell, 1990) at 61.Google Scholar

26. R.v. Steane, [1947] 1 All E.R. 813 [hereinafter Steane].

27. Supra, note 5 at 23.

28. Fried, supra, note 25 at 24.

29. Ibid, at 43.

30. Ibid, at 44.

31. Ibid.

32. Anscombe, G.E.M., “Action, Intention and ‘Double Effect’” (1982) 56 Proceedings of the American Catholic Philosophical Association 12 at 23: “Circumstances, and the immediate facts about the means you are choosing to your ends, dictate what descriptions of your intention you must admit.”Google Scholar

33. Duff, supra, note 25 at 89.

34. Ibid, at 94.

35. Grisez, supra, note 24; Boyle, J.M., “Who is Entitled to Double Effect?” (1991) 16 The Journal of Medicine and Philosophy 475 at 478–80;Google Scholar Finnis, J., “Intention and side-effects” in Frey, R.G. and Morris, Christopher W., eds, Liability and Responsibility (Cambridge: Cambridge University Press, 1991) 32 at 43–, 54–61.Google Scholar

36. Finnis, ibid, at 43.

37. See Fried, supra, note 25 at 23–24,43–44; Anscombe, supra, note 32 at 22–24.

38. More formally, the content of Steane’s intention was “p even if q”.

39. To forestall any misunderstanding, let me emphasize that my talk of “balancing” here in no way implies any commitment to consequentialism (any more than does the notion of “proportionate reason” for the Principle of Double Effect; see Boyle, , supra, note 23 at 528, n. 7).Google Scholar

40. Summa Theologica 2–2, q. 64, art. 7, quoted in Grisez, supra, note 24 at 74. Cf. Fried, supra, notes 30–31 and accompanying text.

41. CLGP, supra, note 8 at 41.

42. To avoid this (to him undesirable) consequence, Finnis would redefine murder to include “doing without lawful justification or excuse an act which one is sure will kill.” Supra, note 35 at 49.

43. By the “circumstances” of an action is meant any state of affairs which the agent neither brings about, nor intends to bring about, by that action, but which in some way forms (part of) the context of that action; see Donagan, , supra, note 23 at 3940;Google Scholar Duff, , supra, note 25 at 42.Google Scholar

44. Williams, Glanville, “Attempting the Impossible—A Reply” (1979) 22 Criminal Law Quarterly 49 at 54.Google Scholar

45. Gold, A., ‘“To Dream the Impossible Dream’: A Problem in Criminal Attempts (and Conspiracy) Revisited” (1978) 21 Criminal Law Quarterly 218 at 236–40;Google Scholar Katz, supra, note 25 at 287. This test is, of course, simply the counterfactual test of intention applied to circumstances. Fletcher presents this test not as a test of intention but as “providing an account of what ordinary people mean when they talk about ‘trying’ or ‘attempting’ to do something.” Fletcher, G., Rethinking Criminal Law (Boston: Little, Brown, 1978) at 161.Google Scholar

46. Anderton v. Ryan, [1985] 2 All E.R. 355.

47. R.v. Shivpuri, [1986] 2 All E.R. 334.

48. Haughton v. Smith, [1973] 3 All E.R. 1109.

49. Fletcher, supra, note 45 at 161. As Fletcher recognizes, the test of rational motivation “points in the direction of liability” in the case of attempted murder by voodoo, although the “consensus of Western legal systems is that there should be no liability”, ibid, at 166. However, I believe that liability can be excluded by using the rule of proximity; see Attempting the Impossible (Again)” (1983) 25 Criminal Law Quarterly 294 at 300–02.Google Scholar

50. TCL, supra, note 8 at 116.

51. S&H, supra, note 11 at 289.

52. Ibid, at 288–89.

53. R.v. Pigg, [1982] 2 All E.R. 591.

54. D.P.P.v. Majewski, [1976] 2 All E.R. 142 [hereinafter Majewski].

55. R.v. Leary, (1977) 33 C.C.C. (2d) 473.

56. Ibid, at 490.

57. S&H, supra, note 11 at 212.

58. TCL, supra, note 8 at 467.

59. R.v. Mohan [1975] 2 All E.R. 193.

60. Moloney, supra, note 18.

61. Supra, note 45 at 850.

62. See, e.g., TCL, supra, note 8 at 468.

63. R.v. Prince (1875), [1874–80] All E.R. Rep. 881.

64. Ibid, at 889.

65. Steane, supra, note 26 at 816.

66. S&H, supra, note 11 at 212.

67. D.P.P. v. Morgan, [1975] 2 All E.R. 347.

68. Ibid, at 363.

69. Moloney, supra, note 18.

70. R. v. Hancock and Shankland, [1986] 82 Cr. App. Rep. 264 [hereinafter Hancock and Shankland].

71. Moloney, supra, note 18 at 108.

72. Majewski, supra, note 54 at 155.

73. Hancock and Shankland, supra, note 70 at 274.

74. For a discussion of whether and how the concept of specific intent applies to “constructive” murder, see Thornton, M., “Making Sense of Majewski” (1981) 23 Criminal Law Quarterly 464 at 476–80.Google Scholar

75. Criminal Code, R.S.C. 1985, c. C–46, s. 229.

76. For a discussion of this seemingly paradoxical point, see Thornton, supra, note 74 at 470–73.

77. For a preliminary survey, see the work cited at note 74 above.

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