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Criminal law

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In the criminal law, intention is one of the three general classes of mens rea necessary to constitute a conventional as opposed to strict liability crime.

Definitions

Intention is defined in R. v Mohan as "the decision to bring about a prohibited consequence".

A range of words is used to represent shades of intention in the various criminal laws around the world. The most serious crime of murder, for example, traditionally expressed the mens rea element as malice aforethought, and the interpretations of malice, "maliciously" and "wilfully" vary between pure intention and recklessness depending on the state and the seriousness of the offence.

A person intends a consequence when he or she foresees that it will happen if the given series of acts or omissions continue and desires it to happen. The most serious level of culpability, justifying the most serious levels of punishment, will be achieved when both these components are actually present in the accused's mind (a "subjective" test). A person who plans and executes a crime is considered, rightly or wrongly, a more serious danger to the public than one who acts spontaneously, whether out of the sudden opportunity to steal, or out of anger to injure another. But intention can also come from the common law viewpoint as well.

The test of intention

The policy issue for those who administer the criminal justice system is that, when planning their actions, people may be aware of many probable and possible consequences. Obviously, all of these consequences could be prevented through the simple expedient either of ceasing the given activity or of taking action rather than refraining from action. So the decision to continue with the current plan means that all the foreseen consequences are to some extent intentional, i.e. within and not against the scope of each person's intention. But, is the test of culpability based on purely a subjective measure of what is in a person's mind, or does a court measure the degree of fault by using objective tools?

For example, suppose that A, a jealous wife, discovers that her husband is having a sexual affair with B. Wishing only to drive B away from the neighbourhood, she goes to B's house one night, pours petrol on and sets fire to the front door. B dies in the resulting fire. A is shocked and horrified. It did not occur to her that B might be physically in danger and there was no conscious plan in her mind to injure B when the fire began. But when A's behaviour is analysed, B's death must be intentional. If A had genuinely wished to avoid any possibility of injury to B, she would not have started the fire. Or, if verbally warning B to leave was not an option, she should have waited until B was seen to leave the house before starting the fire. As it was, she waited until night when it was more likely that B would be at home and there would be fewer people around to raise the alarm.

On a purely subjective basis, A intended to render B's house uninhabitable, so a reasonably substantial fire was required. The reasonable person would have foreseen a probability that people would be exposed to the risk of injury. Anyone in the house, neighbours, people passing by, and members of the fire service would all be in danger. The court therefore assesses the degree of probability that B or any other person might be in the house at that time of the night. The more certain the reasonable person would have been, the more justifiable it is to impute sufficient desire to convert what would otherwise only have been recklessness into intention to constitute the offence of murder. But if the degree of probability is lower, the court will find only recklessness proved. Some states used to have a rule that if a death occurred during the commission of a felony, sufficient mens rea for murder would automatically be imputed (see felony murder). For the most part, this rule has been abolished and direct evidence of the required mental components is required. Thus, the courts of most states use a hybrid test of intention, combining both subjective and objective elements, for each offence changed.

In English law, s8 Criminal Justice Act 1967 provides a statutory framework within which mens rea is assessed. It states:

A court or jury, in determining whether a person has committed an offence,

(a) shall not be bound in law to infer that he intended or foresaw a result of his actions by reasons only of its being a natural and probable consequence of those actions; but

(b) shall decide whether he did intend or foresee that result by reference to all the evidence, drawing such inferences from the evidence as appear proper in the circumstances.

Under s8(b) therefore, the jury is allowed a wide latitude in applying a hybrid test to impute intention or foresight (for the purposes of recklessness) on the basis of all the evidence. See Intention in English law.

Offenses of basic and of specific intent

In some states, a distinction is made between an offence of basic (sometimes termed "general") intent and an offence of specific intent.

1. Offenses requiring basic intent specify a mens rea element that is no more than the intentional or reckless commission of the actus reus. The actor either knew (intended) or deliberately closed his mind to the risk (recklessness) that his action (actus reus) would result in the harm suffered by the victim. The crime of battery, for example, only requires the basic intent that the actor knew or should have known that his action would lead to harmful contact with the victim.
2. A limited number of offences are defined to require a further element in addition to basic intent, and this additional element is termed specific intent. There are two classes of such offences:

(a) Some legislatures decide that particular criminal offences are sufficiently serious that the mens rea requirement must be drafted to demonstrate more precisely where the fault lies. Thus, in addition to the conventional mens rea of intention or recklessness, a further or additional element is required. For example, in English law, s18 Offences Against The Person Act 1861 defines the actus reus as causing grievous bodily harm but requires that this be performed:

1. unlawfully and maliciously – the modern interpretation of "malice" for these purposes is either intention or recklessness, "unlawfully" means without some lawful excuse (such as self-defence); and with
2. the intent either to cause grievous bodily harm or to resist lawful arrest.

The rule in cases involving such offences is that the basic element can be proved in the usual way, but the element of specific intent must be shown using a more subjective than objective test so that the legislature's express requirement can be seen to be satisfied.

(b) The inchoate offences such as attempt and conspiracy require specific intent in a slightly different sense. The rationale for the existence of criminal laws is as a deterrent to those who represent a danger to society. If an accused has actually committed the full offence, the reality of the danger has been demonstrated. But, where the commission of the actus reus is in the future and the accused is merely acting in anticipation of committing the full offence at some time in the future, a clear subjective intention to cause the actus reus of the full offence must be demonstrated. Without this specific intent, there is insufficient evidence that the accused is the clear danger as feared because, at any time before the commission of the full offence, the accused may change his or her mind and not continue. Hence, this specific intent must also be demonstrated on a subjective basis.

Direct and oblique intent

Direct intent: a person has direct intent when they intend a particular consequence of their act.

Oblique intent: a person has oblique intent when they foresee the certainty of a consequence of their act, even if it is not their main objective.

This has two applications:

1. When a person is planning to achieve a given consequence, there may be several intermediate steps that have to be taken before the full result as desired is achieved. It is not open to the accused to pick and choose which of these steps are or are not intended. The accused will be taken to intend the accomplishment of all outcomes necessary to the fulfilment of the overall plan. For example, if A wishes to claim on B's life insurance policy so shoots at B who is sitting in a bus, the bullet may have to pass through a window. Thus, even though A may not have desired B's death, it was an inevitable precondition to a claim. Similarly, he may never consciously have considered the damage to the window, but both the murder and the damage under the Criminal Damage Act 1971 will be intended. This is distinguishing between the direct intention which is the main aim of the plan, and the oblique intention which covers all the intermediate steps. More generally, a person directly intends a consequence when his purpose or aim is to cause it even though he believes that the likelihood of it succeeding is remote. In R v Dadson, for example, the defendant shot at a man whom he wrongly believed to be out of range. In R v Mohan (1975) 2 All ER 193 it was held that direct intention means, "aim or purpose" - "a decision to bring about, insofar as it lies within the accused's power, the commission of the offence..no matter whether the accused desired that consequence of his act or not."
2. Sometimes, by accident, a plan miscarries and the accused achieves one or more unintended consequence. In this situation, the accused is taken to have intended all of the additional consequences that flow naturally from the original plan. This is tested as matters of causation and concurrence, i.e. whether the given consequences were reasonably foreseeable, there is no novus actus interveniens and the relevant mens rea elements were formed before all of the actus reus components were completed.

Conditional intent

In Holloway v. United States, the United States Supreme Court case upheld the use of "conditional intent" as a necessary element of the crime of carjacking.¹ Conditional intent means that a defendant may not negate a proscribed intent merely by requiring the victim to comply with a condition. For example, a person saying, "Get out of the car or I'll shoot you" satisfies the "intent to kill" – so long as the prosecution can prove beyond a reasonable doubt that the defendant would have at least attempted to harm or kill if the victim had not complied (in other words, the prosecution must show that the threat was real, and not a bluff).

See also

Footnotes

References

• Lacey. A Clear Concept of Intention: Elusive or Illusory, (1993) 56 MLR 621.
• Norrie. After Woollin (1999) CLR 532.
• Williams, Glanville. Oblique Intention, (1987) Cambridge Law Journal 417