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Intention And The Search For Definition: A Marriage Of Doctrinal Inconsistency And Incoherent Desires

2854 words - 12 pages

The paradigmatic status of intention as the locus classicus exposition of mens rea, has been subjected to continued criticism, primarily because of the insistence of orthodox criminal lawyers seeking to explain what is seemingly inexplicable. Throughout this paper, I shall explore the reasons why intention has come to occupy such a central position in criminal law doctrine. This will be achieved by analysing the search for the illusive definition pursued by the courts in a number of leading judgments. The cases which will be discussed shall be separated into two distinct categories. First, there exists the chronological development of those cases which debate the term intention and seek to ...view middle of the document...

This at least is a very positivist view of how intention has become a supremely culpable state. The search for a definition however, has been the rather tortuous quest of the appellate courts,especially the House of Lords, for quite some time now. This desire for terminological exactitude has led to excoriating remarks on the part of one eminent scholar, when with sheer exasperation he added that "the House of Lords has a dismal record in criminal cases." Here, Professor Smith, critiquing R v Caldwell , was referring to the creative interpretation of "recklessness" in the context of the Criminal Damage Act 1971, by Lord Diplock. However, compared to the evolution of the term intention, "recklessness" as a specific concept within mens rea, is a beacon of definitional precision!It is important to note at this juncture that there exists no statutory definition of intention. The nearest statutory engagement that we have with the inherent linguistic complexities of the term, is the laying down of an evidential rule as to how intention is to be proved, within section 8 of the Criminal Justice Act 1967. However, in analysing the conscious decision of the courts to accord intention paradigm status within the mens rea doctrine, and thereby seek to either define, or at least consider its meaning, it is prudent that we view its development through a series of important cases, almost all of which where the crime is one of murder. Throughout the following cases, the possibility of two species of intention is also discussed. First there is "direct intent". Here, if a defendant wants a result to occur, and it is his/her aim or objective for that result to occur, then it can be concluded that the defendantintended that result. The second species is described as "oblique intention". Here the description is considerably more controversial. If a defendant has a "purpose other than causing the prohibited harm", but where that result is foreseen as being "virtually certain", then the defendant can be described as having intended that result.The first major case to be considered here is R v Moloney . Here the appellant shot his stepfather, following a drunken contest to determine who would be quicker to draw their shotgun. He claimed that he did not realise that the gun was pointing at his stepfather. Lord Bridge stated that in order to establish the necessary intent, it must be shown that the "probability of the consequence taken to have been foreseen must be little short of overwhelming before it will suffice." This formulation does not however determine what intention is. As a further complication, in cases of where the crime is one of direct intent, the jury guidance given by the trial judge should be one that avoids any explanation as to what intention means. Instead, it should be "left to the jury's good sense to decide whether the accused acted with the necessary intent," unless it is absolutely necessary that further explanation is required. Should such a...

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