Before diving into examining the issues concerning the definition of intention within the case law, we should inspect two approaches to intention. They are the formal psychological (‘orthodox subjectivist’) approach and the morally substantive approach1.
The approach to the intention that has a significant place in legal literature and recognises, orthodox subjectivists adopt the factual definition based more on the mental states of the accused2, e.g. Williams3 and Smith and Hogan4. From the perspective of the psychological approach supporters, the emphasis should be primarily on whether the individual as a matter of fact considered intention, revealing psychological control of the action that has committed5.
It concerns the application of individual’s mind into a particular action to an ‘aim’, ‘end’, or ‘purpose’6. In most of the situations there is a clear connection between individual’s purpose and the outcome of his or her action. However, some complexities arise when the outcome is not the actual product of his intention, but it appears obliquely. This is particularly prominent when the outcome is either a means to an end, by-products or side-effect of actions7.
Nonetheless, the issue arises when the means, by-products or side-effect had a degree of probability or chance of it occurring, rather than being necessary for achieving the main ‘purpose’8. Thus, it could be said that defendant had taken the risk, as he knew that side-effect was possible or likely to occur, rather than intending it happen. It seems that individual’s actions would fall into a category of recklessness9.
The other concern is that, in the real world, means or by-products are not absolutely certain to be necessary or be created. Our actions are always subject to unexpected interventions. However, they do not refute our direct or oblique intentions10. The judges have used words ‘moral’ or ‘virtual’ certainty to express the situations where an event will happen, ‘barring some unforeseen intervention’11.
The morally substantive approach is mainly reflected in the works of 12 Duff13 and Horder14. From the moral approach supporters’ point of view, the emphasis should be on whether an individual’s intention was ‘in its intrinsic quality’15 morally bad or good. Duff has criticised orthodox subjectivist approach for splitting one moral judgement in to subjective and objective components16. Thus, failing to reflect our understanding of wrongdoing, as it inadequately shows us the nature of our moral
1Norrie, A. (2000). Crime, Reason and History. 2nd ed. London: Butterworths, p.57, although he borrowed this two approaches from Bentham, J. (1986). Limits of Jurisprudence Defined: Being Part Two of an Introduction to the Principles of Morals and Legislation. London: Legal Classics Library
2Norrie, A. ‘Between Orthodox Subjectivism and Moral Contextualism’ Crim. L.R. 2006, Jun, pp.486-501
3 Williams, G (1961). Criminal Law: General Part, 2nd ed. London: Stevens
4 Smith, JC and Hogan, B (1965) Criminal Law, London: Butterworths
5 Norrie, A. (2000). Crime, Reason and History. 2nd ed. London: Butterworths, p.57
6 Ormerod, D. and Laird, (2011) K. Smith and Hogan’s criminal law. 13th ed. Oxford ; New York : Oxford University Press, p.111.
7 would be considered more in-depth later.
8Norrie, A. (2000). Crime, Reason and History. 2nd ed. London: Butterworths, p58.
9 ibid, and we will consider recklessness in more detail later.
11 R v Nedrick 1986 1 WLR 1025, p.1028. Per Lord Lane CJ.
12 Norrie, A. (2000). Crime, Reason and History. 2nd ed. London: Butterworths. pp47-50.
13 Duff, A. (1990). Intention, agency and criminal liability. Oxford: Blackwell
14Horder, J. (2000) ‘On the Irrelevance of Motive in Criminal Law’ in Horder, J Oxford Essays in Jurisprudence, Oxford: OUP
15 Norrie, A. (2000). Crime, Reason and History. 2nd ed. London: Butterworths, p.57.
16 Duff, A. (1990). Intention, agency and criminal liability. Oxford: Blackwell, p.113.