Codifying the Meaning of ‘Intention’ in the Criminal Law
| Date | 01 October 2009 |
| DOI | 10.1350/jcla.2009.73.5.590 |
| Published date | 01 October 2009 |
| Subject Matter | Comment |
Codifying the Meaning of ‘Intention’ in the
Criminal Law
Dr Gerard Coffey*
Keywords
Mens rea; Purpose intent; Foresight intent; Human rights;
Statutory modification
What constitutes an intention to commit a criminal offence has proven
to be a notoriously difficult concept to define.1 The issue as to whether
the accused intended the consequences of the prohibited act or omission
constituting the criminal offence charged in the indictment is a question
of fact for the jury to determine based on the evidence tendered at trial
in addition to the trial judge’s charge to the jury. In the absence of a clear
statutory definition of intention in the criminal law it is imperative for
trial judges to instruct juries in accordance with clear judicial guidelines.
However, the jurisprudence of the English and Irish superior courts
pertaining to the meaning of intention, and in particular indirect or
oblique intention, has generally been regarded as unsatisfactory with
the result that trial judges have insufficient guidelines when instructing
juries.2
This comment evaluates the jurisprudence of the superior courts on
the meaning of intention in the criminal law.3 It suggests that the
guidelines formulated by the superior courts hitherto are not definitive
and may lead to confusion when trial judges instruct juries on the
meaning of intention, thus necessitating statutory reform.
Constructing the mental element of criminal
responsibility
As a general rule, the criminal law stipulates that before an accused can
be convicted of a criminal offence the prosecution authorities must
prove beyond reasonable doubt that the prohibited act or omission (actus
reus) coincided in law and time with a culpable state of mind (mens rea).
The mentes reae of most criminal offences in descending order of serious-
ness are: intention (which is the most culpable mental state), reckless-
ness, criminal negligence, and knowledge. In the prosecution of result
* LLB, PhD (National University of Ireland), Lecturer, Centre for Criminal Justice,
School of Law, University of Limerick; e-mail: ger.coffey@ul.ie.
1 See, e.g. N. Lacey, ‘A Clear Concept of Intention: Elusive or Illusory?’ (1993) 56
MLR 621; J. Horder, ‘Intention in the Criminal Law: A Rejoinder’ (1995) 58 MLR
678; N. Lacey, ‘In(de)terminable Intentions’ (1995) 58 MLR 692; S. Parsons,
‘Intention in Criminal Law: Why Is It So Difficult to Find?’ (2000) 4 Mountbatten
Journal of Legal Studies 5; F. McAuley, ‘Modelling Intentional Action’ (1982) 22 Irish
Jurist 179.
2 The significance of appealing to the superior courts on a point of law is to introduce
legal certainty which is imperative in the criminal justice process.
3 See also W. Chan, ‘Intention Thus Far’ [1997] Crim LR 704.
394
The Journal of Criminal Law (2009) 73 JCL 394–413
doi:10.1350/jcla.2009.73.5.590
Codifying the Meaning of ‘Intention’ in the Criminal Law
crimes the issue as to whether the accused intended the consequences
of the prohibited act has been most problematic in the construction of
criminal responsibility.
The accused will rarely admit that he intended to perform the act, or
made the omission, constituting the criminal offence charged in the
indictment.4 Whether or not the accused intended the consequences
of his unlawful transgression may be ascertained from a consideration of
the facts pertaining to the commission of the offence tendered in evid-
ence during the course of the criminal trial. As a general proposition of
the criminal law, the accused is deemed to have intended the natural
and probable consequences of his voluntary acts, especially when the
evidence tendered at trial establishes that the accused had foreseen as a
virtual certainty that the particular consequence would occur, regardless
of whether he desired it.
Intention has not been sufficiently defined by statute and its meaning
therefore has been distilled from the jurisprudence of the superior
courts.5 It is the common-sense meaning of intention that coincides with
what most people consider is an intention to do something, that is, the
accused’s ‘aim, objective or purpose’.6 The fact that the accused does not
desire a consequence which he has brought about is not decisive, nor is
it relevant that he thinks it unlikely that the consequence of the un-
lawful act would occur. There need not be a decision in the ordinary
sense of the word; a fleeting realisation by the accused of the prohibited
consequences may suffice.7
Many criminal offences specify intention as the mental element, that
is, the accused intended to produce specific consequences from the
prohibited act or omission.8 Most of the case law that examined the
meaning of intention in the criminal law pertains to the offence of
murder, which is concerned with the subjective state of mind of the
accused. The House of Lords has considered what state of mind would be
sufficient to constitute intention, in addition to cases where the accused
4 Omission liability should not be excluded from this analysis as the accused may
have ‘let die’ as opposed to killing the victim by a positive (outward) act.
5 One of the earlier judicial pronouncements on the issue was that of James LJ in R v
Mohan [1976] 1 QB 1 at 11, describing specific intent as: ‘. . . a decision to bring
about, insofar as it lies within the accused’s power, the commission of the offence
which it is alleged the accused attempted to commit, no matter whether the
accused desired that consequence of his act or not’. This excluded the concept of
desire from the meaning of intention in the criminal law.
6 A. Ashworth, Principles of Criminal Law, 6th edn (Oxford University Press: Oxford,
2009) 174 writes: ‘[T]he proper definition of intention remains the subject of
theoretical debate and judicial disagreement. The core of “intention” is surely aim,
objective, or purpose; whatever else “intention” may mean, a person surely acts
with intention to kill if killing is the aim, objective, or purpose of the conduct that
causes death.’ See further: L. Chantry, ‘Intention and Purpose in Criminal Law’
(1991) 13 Liverpool Law Review 37; M. Thornton, ‘Intention in Criminal Law’ (1992)
5 Canadian Journal of Law and Jurisprudence 177.
7 See P. Cane, ‘Fleeting Mental States’ (2000) 59 CLJ 273. The criminal law is
concerned only to discover if one particular intention was present when the offence
was committed, that is, intention specified by the statutory definition of the offence
charged.
8 Intention is the culpable state of mind for many heinous criminal offences including
murder, theft, burglary and robbery.
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The Journal of Criminal Law
had acted with the specific purpose of killing or causing serious injury to
the victim. The crucial factor in the offence of murder is whether the
accused intended to kill or cause serious harm to the victim. For such
crimes of consequences, also referred to as result crimes, it is not so
much the act done but the result produced by the accused’s unlawful
acts that is decisive.9
Direct and oblique intention
The criminal law has made a distinction between direct intention (pur-
pose intent) and indirect or oblique intention (foresight intent). The
accused is deemed to have had direct intent when he intended a
particular consequence of the unlawful voluntary act. Many criminal
offences specify intention as the mens rea which may be direct or,
alternatively, oblique where the prohibited act has consequences that
were not the accused’s primary purpose. In other words, oblique inten-
tion is bringing about another consequence, which although the ac-
cused foresaw as a probable consequence of the prohibited act claims
that he did not intend.10
The issue of indirect intention pertains to cases where the accused
had engaged in objectively dangerous conduct but claims that his prim-
ary purpose was to achieve something other than killing the victim.11 In
view of the fact that juries may ‘find’ that the accused acted with intent
based on the evidence tendered at trial, it is imperative that trial judges
have sufficient guidelines when instructing the jury on the meaning of
intention. However, due to their lack of clarity, judicial guidelines for
trial judges when directing juries on the meaning of intention have
consistently required further refinement by the superior courts.
English jurisprudence on oblique intention
In DPP v Smith,12 the accused while trying to avoid arrest killed a
policeman by driving off with the victim clinging to the accused’s car.
The House of Lords held that the accused was guilty of murder for two
reasons. First, because death or grievous bodily harm was foreseen as a
likely result of the accused’s unlawful act. Secondly, the accused was
deemed to have foreseen the risk which a reasonable person in the
position of the accused would have foreseen. The second ground for
the House of Lords’ decision had been widely criticised as it introduced
an objective element in the meaning of intention.13 Consequently, the
ruling in Smith was effectively reversed by statute. Section 8 of the
9 For the offence of murder, the issue is whether the victim died as a result of certain
conduct by the accused such as shooting the victim resulting in death.
10 For further discussion on this extension in the meaning of intention in the criminal
law, see: I. Kugler, Direct and Oblique Intention in the Criminal Law: An Inquiry into
Degrees of Blameworthiness (Ashgate: Aldershot, 2002); I. Kugler, ‘Conditional
Oblique Intention’ [2004] Crim LR 284; I. Kugler, ‘The Definition of Oblique
Intention’...
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