A Clear Concept of Intention: Elusive or Illusory?
| Author | Nicola Lacey |
| Published date | 01 September 1993 |
| Date | 01 September 1993 |
| DOI | http://doi.org/10.1111/j.1468-2230.1993.tb01894.x |
THE
MODERN LAW REVIEW
Volume
56
September
1993
No.
5
A
Clear Concept
of
Intention: Elusive or Illusory?
Nicolu
kcey*
Introduction
The conception of intention occupies a peculiar place in criminal law. Whilst its
doctrinal and ideological importance is hardly to be questioned, its practical
significance at the level of enforcement is very different from that envisaged by
criminal law doctrine. And although it has been subjected to at least as much
judicial and academic scrutiny as any other
mens reu
term,’ theoretical and
practical consensus around a clear concept of intention seems as far away as ever.
In this article, I shall revisit the territory of recent cases considering the concept of
criminal intention, focusing in particular on the decision of the House of Lords in
MoZoney.2
It will be argued that a careful re-reading of the case can help us to see
some important issues which the orientation of many commentaries around a
conceptual analysis of intention has tended to obscure. In particular, the aim is to
examine the significance of, and ambivalence within, appeals to ‘common sense’
and ‘ordinary language’ in resolving the practical difficulties which continue to
arise in the interpretation of offences which include a requirement of intention.
Whilst the recent cases and debates about intention provide a useful forum for such
an inquiry, the points which emerge from my analysis have equal significance for
other areas of criminal law. They also, I shall suggest, raise some important
questions about the ideals of consistency and certainty which inform much of the
relevant debate, and have implications for the approach which those of us who
study and teach criminal law should take to the ambit of our studies.
A
Why
Bother About Intention?
Before embarking on any substantive analysis, however, it is important to consider
some sceptical suggestions to the effect that intention has already had a good deal
*I
should like to thank John Gardner, Mark Kelman,
Alan
Norrie, Peter Rush, Celia Wells and two
(anonymous) readers for the MLR for their very helpful comments on an earlier draft of this article.
I
also
benefited from the questions and comments of participants in the seminar on Philosophical Foundations of
the Common Law at Oxford University in the autumn of
1991,
and a lecture audience at King’s College
London in February
1992,
to whom
I
presented early versions of the paper.
1
Mens
rea
is the (not entirely happy) umbrella tern used by most criminal law scholars to refer to a
range of practical attitudes or states of mind on the defendant’s part, which form part of the definition
of many offences.
[1985] 1
All
ER
1025.
2
0
The Modern Law Review Limited
1993
(MLR
565,
September). Published by Blackwell Publishers,
108
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OX4
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and 238 Main Street, Cambridge, MA
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62
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The Modem Law Review
[Vol.
56
more attention from criminal law scholars than it really deserves. Two kinds of
scepticism are worth considering. The first kind of sceptic
-
let’s call her the
descriptive sceptic
-
focuses her critical attention on the remarkable continuity
among criminal law commentators in terms of their recognition of intention as the
central use of
mens
reu.
Legal philosophers with such divergent views as Hart3
and DufP have accorded intention this kind of paradigm status. Albeit in
different ways, each of them sees a requirement of intentional action as a key
expression of the values associated with the ‘principle of
mens
reu’
-
the
presumption that each offence, absent clear indications to the contrary
,
requires
proof that the defendant had some form of
mens
reu
-
which is central to criminal
law doctrine. For Hart, the agent who acts with intent exercises most fully and
freely the capacities for knowledge, choice and control which are the basis for
genuine responsibility. For Duff, the agent who acts with intent most closely and
dispositionally identifies herself with her action, for which she can hence be held
accountable. Intentional conduct, in other words, constitutes the paradigm of self-
determined action. Similarly, legal commentators like William~,~ Smith and
HoganY6 Card, Cross and Jones,7 Clarkson and Keating8 mark this centrality
by dealing with intention first among
mens
reu
terms. Despite important
differences in their interpretations of the moral values underlying the ‘principle of
mens
reu,’
each of these commentators expressly or implicitly suggests that
offences which require proof of intention express those values fully.
Against this, the descriptive sceptic points out that intention in fact now has to be
proved in a very small number of offences, the vast majority requiring only proof
of recklessness
or
negligence. Furthermore, she argues, the offences in which
intention does have to be proven, notably that of murder, whilst among the most
serious in criminal law, are also among the least frequently charged. And the one
main exception to this
-
the offence of theft
-
is arguably removed from the
category of offences which genuinely require intention to be proved because of the
extraordinarily extended conception of intention permanently to deprive embodied
in
section 6 of the Theft Act
1968.
In the light of this marginality of intention in
criminal law in practice, why should criminal law commentators continue to
accord it
so
much attenti~n?~
The other kind
of
sceptic
I
shall call the reductive sceptic. His argument is
reminiscent of legal realism: he might suggest that legal concepts such as intention
merely serve to mask retrospective rationalisations of substantive value judgments
which courts or commentators want to make. On
this
view, the debate about
competing conceptions of intention is just
so
much hot air: no actual conception in
fact constraints the substantive ascriptions of responsibility in question. The
function of the concept of intention in legal discourse is hence not logical, but
ideological.
3
H.L.A. Hart, Punishment and Responsibility (Oxford: Clarendon Press, 1968).
4
R.A. Duff, ‘The Obscure Intentions of the House
of
Lords’ (1986) Crim LR 771; ‘Intentions Legal
and Philosophical’ (1989) OJLS 76: Intention,
Anency
and Criminal tiability (Oxford: Basil
..
--
Blackwell, i990).
G.
Williams.
A
Textbook
of
Criminal
Law
(London: Stevens. 2nd
ed.
1983).
5
6 J.C. Smith and B. Hogan,*Criminal
Law
(iondon: Buttemoh,
7th‘ed,
1992).
7
R.
Card, Cross and Jones, Criminal
Law
(London: Butterworths, 12th
ed,
1992).
8
C.
Clarkson and
H.
Keating, Criminal
Law:
Text and Materials (London: Sweet
&
Maxwell, 2nd
ed,
1990).
9 See
N.
Lacey, C. Wells and D. Meure, Reconstructing Criminal
Law
(London: Weidenfeld and
Nicolson, 1990) chs
1
and
4.
622
0
The
Modem
Law Review Limited
1993
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