The Definition of Oblique Intention
| Author | Itzhak Kugler |
| DOI | 10.1350/jcla.68.1.79.25832 |
| Published date | 01 January 2004 |
| Date | 01 January 2004 |
| Subject Matter | Article |
The Definition of Oblique
Intention
Itzhak Kugler*
Abstract The Law Commission contended that a person should not be
held as having oblique intention with respect to a result if his whole
purpose in acting is to avoid this result. This article asserts that the
Commission was wrong concerning this point. The justifications that it
gave for the rule it suggested are not convincing, while the rationales for
the doctrine of oblique intention apply even to cases in which the whole
purpose of the actor, in acting, is to avoid the proscribed result.
Direct/oblique intention
Many offences that contain a result element can be committed ‘inten-
tionally or recklessly’. There are, however, offences that are defined so
as to require an intention to cause a specified result. The element of
‘intention to cause a result’ may appear not only in offences where the
actus reus includes the forbidden result, but also in ‘ulterior intent’
offences (i.e. offences in which the mens rea includes an intention to
produce some further consequence beyond the actus reus of the offence).
The offences in which there is a requirement of intention may be called
‘intention crimes’. A person may be convicted of ‘intention crimes’ if
when he acted he wanted to bring about the specified result. These are
cases of ‘direct intention’. However, in many ‘intention crimes’ oblique
intention is also sufficient for conviction. Oblique intention is estab-
lished in cases in which the actor, who does not act in order to cause the
proscribed result, is aware, when he acts, that there is a practical
certainty that the proscribed result will ensue.1
Practical certainty and purposeful avoidance
Clause 18 of the Draft Criminal Code for England and Wales defines
oblique intention on the lines described above. It provides that a person
acts intentionally with respect to a result ‘when he acts either in order to
bring it about or being aware that it will occur in the ordinary course of
events’.2This definition was criticised by Professor John Smith on the
basis, inter alia, that it enables a person to be held as having intended a
result that it was his purpose to avoid. According to the definition in cl.
18 of the code, a person who knows that there is a practical certainty
that a result will happen and his whole purpose in acting is to avoid it
will be considered as intending the result to happen. Professor Smith
thought that such a person should not be treated as intending the result,
* Faculty of Law, The Hebrew University, Jerusalem.
1 See A. Ashworth, Principles of Criminal Law, 3rd edn (Oxford University Press:
Oxford, 2003) 175–6.
2 Law Commission, A Criminal Code for England and Wales, Report No. 177 (London,
1989).
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