#15606 - Essay Questions Notes - Criminal Law

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.”

  • 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.

  • 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:

  • 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.

  • 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.

  • 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.

  • Ashworth describes this as “leaving the door ajar” which “judges believe to be essential to do justice.”

  • 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

  • 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:

  • 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.

  • 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.

  • Horder: this means that the jury have moral elbow room.

• Is this position satisfactory:

  • 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’?

  • 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.

        • 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 oblique-intention theory ‘pseudo-masochist’ in nature because it “holds those who foresee that their actions will have painful effects on themselves intended those effects.”

        • 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.

        • 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.”

        • 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.”

  • 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:

• 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 “...