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.
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Doesn't fit with ordinary meaning of intention: e. 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. However, this seems unsatisfactory.
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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. 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. 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. Is 'intention' a matter of fact or is it a statement of moral judgment. Clear that some MR elements are matters of fact e. Traditional factual definition of intention is adopted by subjectivists e. 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. Ex-ante considerations - deterrent, mediating the scope of the offences themselves.
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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 : 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. Killing with intent to cause serious bodily harm? Doing without lawful justification or excuse an act which is sure to kill.
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. 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. 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.
Extract of sample "Intention and Motive in Criminal Law"
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. There are standards here e. 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. 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. On the other hand, a substantial sentence of imprisonment would make little sense, since it would be disproportionate to the occasion.
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Criticism of subjectivist principles: if law took a consistently subjectivist approach, it would have to adhere to the rules and principles set out below. They also require an explanation that the greater the probability of a consequence the more likely it is that the consequence was foreseen and that if that consequence was foreseen the greater the probability is that that consequence was also intended'. In Nedrick  1 WLR , the Court of Appeal laid down a narrower test so that the distinction between recklessness and intention is clearer.
This was approved by the House of Lords in Woollin. Although the meaning of intention has proved difficult to define, the law appears more settled now. The law on recklessness has also been uncertain in previous years. Prior to , there were two legal tests of recklessness: one was a subjective meaning of recklessness from Cunningham and the other was an objective definition adopted by the House of Lords in MPC v Caldwell which applied to criminal damage.
In R v G in , the House of Lords overruled Caldwell , confirming that a subjective test should apply in respect of criminal damage. Thus, since it would appear that the subjective approach to recklessness has prevailed and that the law is settled.
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The subjective test of recklessness from Cunningham requires that 'the accused has foreseen that the particular kind of harm might be done, and yet has gone on to take the risk of it' per Byrne J. This subjective test was applied until the decision in Caldwell in in which the House of Lords held that a second test of recklessness should apply in cases of criminal damage under which the defendant: i does an act that creates an obvious risk of damage, and ii gives no thought to the possibility of there being any such risk, or recognising some risk he goes on to do the act anyway.
This was labelled as the objective test of recklessness. Thus, two tests of recklessness existed.
However, Caldwell was heavily criticised. One of the major problems was that this objective test could lead to harsh results when applied in respect of children or those with a lower capacity to appreciate risk: Elliott v C  1 WLR This issue led to Caldwell being overruled.
Having two separate tests of recklessness was problematic as it over-complicated the law and was confusing for juries. A further criticism was that the objective test of recklessness from Caldwell blurred the distinction between the concept of recklessness and that of negligence, which is traditionally objectively assessed. It also contradicted the subjective trend within criminal law — intention is subjectively assessed.
The Law of Intention
These criticisms led to the House of Lords overruling Caldwell in R v G , and restoring a subjective test of recklessness in relation to criminal damage. However, the House restricted the decision to criminal damage. Sarah is the subject coordinator for law at an independent sixth form college in Birmingham.
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