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CRIMINAL LAW ESSAY OPTIONS GENERAL PART: INTENT Benjamin Xie --- criminal intention --- OULJ
?????Motive is irrelevant in criminal law. However, contrast between the following --- both crimes committed with a good motive --- shows that it can sneak in by the back door (as in Steane). Although court in that case said they were only considering intention, his intent was said to be "his desire to save his wife and children." o R v Steane: D charged with doing acts to assist the Nazi cause (helped broadcast propaganda). D did so because X threatened his wife / children. HL: should be acquitted. o R v Smith: attempted to bribe mayor to expose latter's corruption. D was charged. Hilbery J: D was convicted.
?????Role of intention in the criminal law: two distinct tests: o Direct intent: this is (per Bridge in Moloney) to be left to the jury on ordinary meaning, except to explain that it is distinct from motive or desire. o Oblique intent: defined in the Woolin test: "jury should be directed that they are not entitled to infer [replaced with find in Woolin] the necessary intention, unless they feel sure that death or serious bodily harm was a virtual certainty (barring some unforeseen intervention) as a result of D's actions and that D appreciated that this was the case."
?????Rule of law: flexibility inherent in concept of intention theoretically allows for it to be used to sidestep the rule that motive is irrelevant to intention. o Norrie has noted that the flexibility inherent in the concept of intention allows the court "morally elbow room" when there is a moral pull to decide a case in a certain way. o Ashworth describes this as "leaving the door ajar" which "judges believe to be essential to do justice." o Cases which display the flexible trend:
? Gillick: doctor gave contraceptives to a girl -16. Held to have no intention to aid /
abet sexual intercourse.
? Re A: did not have intention to kill (per Walker LJ).
? Yip Chiu-Cheung: undercover drug enforcement officer had intention to traffic heroin o Ways in which this is incompatible with the rule of law:
? Law states that motive is irrelevant. However, it appears it is considered via intention.
? Concept of intention itself is applied differently from case to case; in some cases motive is relevant, in other cases it is not.
?????Intention should therefore be more tightly defined as: o When D (i) acts in order to bring about an immediate result; (ii) the immediate result will be virtually certain to occur and he acts knowing that is so. o Other reform proposals:
? Ashworth: has argued that the courts should adopt a tighter definition of intention and place greater emphasis on appropriate defences instead, so as to insure important moral distinctions are marked appropriately.

?

Law Commission: tighten the definition: a person acts intentionally if they act to: (i) bring it about; (ii) knowing it will be virtually certain to occur; (iii) knowing it would be virtually certain to occur if he was successful in his purpose of causing some other result. Before adding "a person is not to be deemed to have intended any result which it was his specific purpose to avoid."

How should intention be defined?
?? ? ?Little disagreement about the basic definition --- a person intends a result if it is his aim /
purpose when acting to produce a result. Courts have made clear that intention is not the same as motive.
?? ? ?Oblique intention: Woollin, confirmed in Matthews v Alleyne by the CA that the direction entitles but does not require the jury to find intention. In other words, it is open to a jury to conclude that even though the result was virtually certain, the jury may find there was no intention. o Horder: this means that the jury have moral elbow room.
?? ? ?Is this position satisfactory: o Pedain: the normal meaning of intention can reflect intuitions which are helpful . Our instinctive responses to different categories of case can be complex and are not necessarily captured by the single concept of foresight or purpose. Direction that the jury should use the normal meaning of intention may, therefore, allow the jury to undertake a more wide ranging assessment of blame than is possible if a more precise definition were given.
?? ? ?Should intention only mean 'purpose'?
o Case that intention and foresight should be kept separate: Finnis: intention should only mean 'purpose' and nothing more --- objects to Woollin that a foreseen virtually certain result should be found to be 'intended' even though it was not part of D's purpose: "side effects, in the sense relevant to morals and law, are effects which are not intended as end nor as means in the plan adopted by choice. What state of affairs are means and what are side-effects depends on the description which they have in the proposal or plan adopted in the choice which brings them about, i.e., in the clear-headed reasoning which makes that plan seem a rationally attractive option."
? Arguments in favour:
?? ? ?Clarity: it draws a bright line between the concepts of foresight and intention. Once accepted that there is a sense in which a person intends a result simply because it is foreseen as virtually certain or very likely it can become very difficult to draw a line between foresight and intention. o Objection: Certainty / clarity is not the only foal of the law; the clearest law is not necessarily the fairest / best.
?? ? ?Doesn't fit with ordinary meaning of intention: e.g. if I have a heavy night drinking, I don't intend to become hungover; if I give a lecture on technical points of trusts, I don't intend my students to be bored. Thus Finnis calls obliqueintention theory 'pseudo-masochist' in nature because it "holds those who foresee that their actions will have painful effects on themselves intended those effects." o We might deal with these cases by the reasoning used in Woollin: jury is only entitled to find intention, does not have have to find intention --- this in

examples given by Finnis, the jury presumably wouldn't find intent. However, this seems unsatisfactory.
?? ? ?Keeping intention tied to purpose explains why intention is the most serious form of MR: Moore: argues that intention indicates that the actor has sought to control a result and the result is something D has used in his moral assessment --- it has played a key role in his moral assessment about how to act because it is the reason he has acted. As Duff points out, in such cases D is willing to act, even thought the foreseen result is almost certain --- he has associated himself with the outcome.
? Arguments against:
?? ? ?D who foresees a result as a virtually certain result of his actions must accept the consequences of his action. We cannot act and then pick and choose the consequences we wish to be responsible for. o G. Williams: "there is no legal difference between desiring or intending a consequence as following from your conduct and persisting in your conduct with knowledge that the consequence will inevitably follow from it, though not desiring that consequence. When a result is foreseen as certain, it is the same as if it were desired or intended." o Simester: intention to produce one result is intention to produce its inseparable twin-consequence. To him, it is the person's own understanding of the world which plays an important role in this inseparability: "agent's practical conception of the inevitable outcome of her behaviour in bringing about X shall include Y --- she cannot conceive of bringing about X alone." o Norrie: one issue is the nature of the concept. Is 'intention' a matter of fact or is it a statement of moral judgment. Clear that some MR elements are matters of fact (e.g. foresight is a simple statement of fact --- either D foresaw something or not), but dishonesty is a matter of moral assessment.
? Traditional factual definition of intention is adopted by subjectivists --- e.g. Horder and Gardner --- on this view, it is anathema that that jury is 'entitled' to find intention without clear guidance of what factors they should take into account. Because what we're trying to find is a psychological question of fact.
? Moral approach: delegation to the jury makes much more sense because jury is required to make a moral judgment about whether D's state of mind deserves the label 'inention' Functions of Mens Rea (Simister & Sullivan)
? [Fault] It helps to establish the moral innocence or guilt of the defendant's conduct (and as such, affects sentencing as well as conviction).
? [Fair warning] MR plays a key mediating role in criminalisation, being part of the trade-off between the protection of potential victims and the preservation of liberties for potential defendants.
? Ex-ante considerations - deterrent, mediating the scope of the offences themselves. My thoughts:

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What judicial decisions demonstrate (Steane, Gillick, Chandler v DPP) is that courts do not adhere to a single definition of intention. This might be evidence of a 'realist' interpretation - courts decide the result and then reason backwards, but the set of decisions is too small to authoritatively make that conclusion. Norrie (2001): it reflects an attempt to separate legal judgement from substantive moral issues.
? Intention does not necessarily incorporate elements of moral evaluation, unlike other mens rea terms (such as recklessness), so when faced with a strong moral pull towards exculpation the courts have sometimes (Steane, Gillick), manipulated the concept of intention rather than developing a defence of criminal liability. However, it would surely have been better to adopt a tighter definition of intention (excluding the permissiveness of "may be found") and place greater emphasis on appropriate defences.
? Problems with oblique intent o Oblique intent should not invariably be allowed to fix a person with intentional participation in the misbehaviour of other people merely because he foresees such misbehaviour. [Plus, see later notes on the recklessness and intention boundary]. o The preponderant use of unlikely examples also adds a further danger: the lacuna that oblique intention is meant to remedy only occurs relatively rarely, so discussion about terrorists, planes and insurance can have the unintended consequence that the academic literature on intention effectively seeks to solve a problem that doesn't exist. o Finnis' solution: much better to extend definition of murder to:
? Killing with intent (to cause serious bodily harm)
? Doing without lawful justification or excuse an act which is sure to kill. o Essentially, avoids the attendant problems of expanding the meaning of intention to something it clearly isn't. CORRESPONDENCE / GENERAL Answers:
? ? ? ? Two key approaches to MR in criminal law: o Subjectivism: MR should be concerned with D's actual awareness of the outcome --- asks what he foresaw and how likely he thought the outcome was; blames him for choosing to cause / risk causing that outcome.
? Key principles of subjectivism:
?? ? ?Relies on the notion that individuals can be considered culpable for harm only where they were aware of the risk of harm and thus were able to avoid it. Important that D "voluntarily causes the outcome, either by consciously running the risk of that outcome or by actually intending it." Based therefore on individual autonomy.
?? ? ?Ashworth: this requires the law to penalise D only for conduct he has chosen to do. Freedom of choice is of utmost importance when labelling an individual morally culpable for his conduct --- someone who has no opportunity to desist is not blameworthy for an outcome at all.
? ? ? ? Correspondence principle: autonomy principle tells us whether D can be morally culpable for the harm he causes, but not how culpable --- work here is done by the correspondence principle: "if the offence is defined in terms of certain consequences and certain circumstances, the mental element ought to

?correspond with that by referring to those consequences or circumstances." The greater the harm contemplated / intended by D, the more morally culpable he is.
? ? ? ? Subjective hierarchy: correspondence explains why, for example, subjectivists consider D who has foreseen some harm to be less morally culpable than one who has foreseen death. Does not tell us why a person who intended death is more culpable than one who was reckless as to possibility of death. Seems to be a 'subjective hierarchy' based on probability of risk seen by D: "the more likely D thought the outcome was, the more blameworthy a subjectivist considers him." This is very clear from Woolin
--- foresight of virtual certainty may not be intention, but as a proxy it is just as morally culpable. "An individual who acts knowing that the result is virtually certain displays the very highest degree of moral guilt and so the distinction between recklessness and consequence-intention is much clearer." Subjectivists view of objective tests: objective standards are defined by reference to how likely or obvious a risk would have been to an ordinary person, or what that ordinary person would have done in D's situation. There are standards here --- e.g. difference between ordinary and gross negligence. Both problematic from a subjectivist standpoint as "neither of these objective standards can show D to be sufficiently morally culpable for a serious offence" because the threshold for subjectivist liability has not been passed.
?? ? ?Smith: believes that an objective test does not require any enquiry into D's state of mind and so can't properly be described as MR. Because D is not aware of an outcome, he can't avoid it, and therefore criminal law violates principle of autonomy. Welfare principle: subjectivists can justify some deviation on utilitarian grounds ---
the welfare principle is the idea that, although individual autonomy is important, the law ought to be able to enforce society's collective goals.
?? ? ?Ashworth: gives example of the failure to accurately state income for tax purposes: strict liability will be imposed in such circumstances because they law must be able to regulate certain activities to ensure they are performed correctly. Strict liability ensures that those stating income for the purposes of tax take care to ensure that they do so correctly. Similarly, driving offences are a matter of public concern because of the danger that would be created if driving were not regulated. "Fact that negligence is punishable ensures that all drivers take care."
?? ? ?Point is that punishment for failures to meet regulatory standards can be justified by the need to achieve society's collective goals even where D does not meet the minimum requirements of moral blame required by subjective recklessness.
? ? ? ? Limits of the welfare principle: only really can apply to regulatory offences
--- need to regulate conduct in the interest of public welfare is set against the social stigma of being convicted of a 'real' (rather than 'regulatory') criminal offence. o Lord Diplock in Gammon (HK): "other considerations have to be borne in mind including the nature of the prohibited act: if it were truly

?criminal, it would be necessary, for example, to consider whether the public interest really required that an innocent person should suffer in order that fewer guilty men might escape." o Williams on Caldwell: "we have made a conscious decision of policy in this country not to visit damage to property when caused by inadvertent negligence with penal sanctions except in special situations, where the penalties are comparatively light." Instead "fines, and if necessary repeated fines, [for negligence] prod people into taking care. On the other hand, a substantial sentence of imprisonment would make little sense, since it would be disproportionate to the occasion." Issues: may fail to provide an accurate reflection of D's moral culpability on some occasions --- e.g. by acquitting individuals who are culpable on a broader view of morality. Criticism of subjectivist principles: if law took a consistently subjectivist approach, it would have to adhere to the rules and principles set out below.
? ? ? ? Narrowness of subjectivist principles: biggest criticism --- narrowness of principles undermines operation of traditional subjective tests. They will not label individuals as culpable for harm they have caused unless they at least foresaw the possibility that such harm would occur. Thus, the angry D who did not see a risk may be let off: o Ashworth: suggests that the challenge posed by indifference need not be addressed --- juries may simply convict some thoughtless Ds as subjectively reckless as they would simply not believe their defence.My thoughts: this is a shockingly bad argument; effectively admits flaw in position and then relies on pragmatic systematic mistaken decision making. o Williams: since foresight is a matter of inference only, Ds who claim to have lacked foresight due to rage are likely to be convicted due to a lack of sympathy.
? ? ? ? Inability to deal with motive: o May (as Duff points out) be too broad in that it can't account for proper motive --- e.g. D who foresees a risk but acts out of a laudable motive. Law not accounting for motive prevents it from becoming too complex. The point is that this breaks the link, to some degree, between criminal and moral culpability.
? This explains why Woolin is evidential only --- it allows the jury to choose not to infer intention, providing protection for a surgeon causing GBH during an operation, or father who throws his child out of the window to save him from a fire
? ? ? ? Artificial test: any subjective test effectively askes the impossible of the jury
--- they have to decide what D's actual state of mind was. Thus there are few cases where the test is said to have been applied accurately --- the practical application of the test may therefore be artificial. The more obvious the result, the less believable D's contention that he did not foresee, but this may naturally lead the jury to consider what they would have done / foreseen in the circumstances and is little different from the jury posing a question as to

what the reasonable man would have foreseen. Thus, the practical application of subjective and objective tests may not be so different. This was recognised by the Law Comm's investigation into manslaughter. o Objectivism: imposes an external standard of care / foreseeing that D is expected to measure up to and blames him for failing to attain this standard.
? McEwan & Robilliard: provides pragmatic realism and a simpler enquiry.
? ? ? ? English law takes an inconsistent approach: o A and B, soldiers, fire live rounds into a crowd during a demonstration (thinking rifles were loaded with blanks). A injures several people; under s.20 OAPA, he is only liable if he foresaw his actions causing some harm. B kills V. He may be liable (gross negligence manslaughter following Adamoako) regardless of what he foresaw. They displayed the same degree of fault, yet outcome varies the law's interest in their respective mental states. o Recklessness is now defined subjectively throughout much of the criminal law following G and R, but in the same year, Parliament passed the Sexual Offences Act 2003, which adopts an objective approach throughout the act. o Gross liability manslaughter: considered in Misra: feared that it imposed an objective standard at odds with G --- however, Judge LJ held that it still required some fault on part of D
? ? ? ? Current trend in favour of subjectivism: o Most notable in G and R: Lord Bingham: "it is neither moral nor just to convict a defendant on the strength of what someone else would have apprehended if D himself had no such apprehension."
? ? ? ? Law's lack of commitment to subjectivism: current criminal law can't be described as exclusively / consistently subjectivist. This might in part be attributed to the fact that Parliament is influenced by different concerns than the judiciary --- e.g. difference between SOA 2003 and G and R. Noted in Hansard that one of the reasons for the SOA was to place more emphasis on protecting victims and raising conviction rates than it does to preserve traditional principles of liability (Baroness Noakes). o Minor deviations: can be attributed to the fact that subjectivist principles are idealistic:
? MR requirements for OAPA1861: the MR requirements in offences against the person do not adhere to the correspondence principle (e.g. s.20 requires foresight of some harm not GBH).
?? ? ?Horder: GBH is an 'open textured harm' and there are a range of different degrees of injury that might be considered bodily harm: "the overwhelming likelihood must be that in many cases D will have given no thought to the exact nature of the injury he may inflict." Accordingly, the required MR in murder and s.20 do not represent a complete abandonment of correspondence
--- come link between harm foreseen and harm caused is still necessary (or we would allow a murder charge on foresight of a minor harm). Horder therefore thinks of the correspondence principle as more accurately described as the proximity principle. o Moderate deviations: here foresight of possibility still forms the threshold for criminal culpability, but either the correspondence principle or the subjective hierarchy have been abandoned. These are compromises --- subjectivist principles at least determine D to be morally culpable according to hwat he saw.

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