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Oblique Intention

Published online by Cambridge University Press:  16 January 2009

Glanville Williams
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Why is it that intention, or intent, one of the basic concepts of the criminal law, remains so unclear? Judges decline to define it, and they appear to adjust it from one case to another.

Part of the trouble is the disagreement on the subject of intention amoung jurists generally. The Philosophers who have lately arrived on the scene, hoping to help the lawyers to slove their legal problems, in fact give only limited assistance. Their philosophical interest stems from the fact that intention is an important ethical concept, but they do not relate their discussions to any particular ethical concept, but they do not relate their discussions to any particular ethical theory, and they do not sufficiently consider the specific requirements of the criminal law. Indeed, they mix up the ordinary meaning of the word “intention” with its desirable legal meaning. To be sure, the meaning of intention as a technical term of the law ought to be close to the literary and popular one, but there are sound reasons for saying that the two should not always be indentical.

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The Cambridge Law Journal , Volume 46 , Issue 3 , November 1987 , pp. 417 - 438
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Copyright © Cambridge Law Journal and Contributors 1987

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References

1 An example is the statement that “wilfully” lets in a defence of claim of right: see my Textbook of Criminal Law, 2nd edn 140. Other examples are given later.

2 See the helpful analysis by the philosopher Duff, R. A. in [1987] Crim, L.R.149Google Scholar. This analysis is of what the author calls “intended action”, by which he means “action with intent”. Under the scheme of the Draft Code (see later) the analysis applies to acting “purposely”; the code uses the word “intentionally” more widely, to cover oblique intent as well.

3 It would not be a misuse of language to assert that a person who is seriously planning a crime has an intention to commit the crime although he has not yet taken any step to that end. But the assertion would have little legal significance, since the law generally takes no notice of mere mental states. See, however, the following note.

4 But the external element may be a criminal omission; this can be intentional, in which case there is nothing but a non-event plus a state of mind.

5 Another philosopher, Professor Alan White, suggests a distinction (92 L.Q.R. 574): a person may go to Australia with the intention of staying for not more than a year; this is his intention when he goes, but not his purpose in going. If he goes to Australia with the intention of visiting his grandchildren, that is a purpose. I would suggest that “goes to Australia” is ambiguous. When the traveller embarks, his intention (and purpose) is to travel to Australia (not necessarily his only purpose). When he arrives in Australia that intention is fulfilled. At the same time, he intended (and purposed) to return within a year. Of course he may change his intention. I cannot think of any context in which the point would create a legal problem.

6 See Alan White in 92 L.Q.R. 576 and Duff, R. A. in [1986] Crim. L.R. 773Google Scholar. For a lawyer's opinion in support see Stuart, Donald in [1968] Crim. L.R. 649Google Scholar. As will be shown, the judges seem to take the same view.

7 Hunter [1974]Q.B.95.

8 Mere knowledge is not, of course, enough to constitute intention if the defendant can do nothing about it. This proposition is particularly important in relation to offences of omission and situational offences. If a patient in hospital gets to know that his child at home is being neglected, he does not at that moment himself intentionally or wilfully neglect the child, if he cannot do anything to prevent the neglect continuing. See Glaze, brook in Reshaping the Criminal Law (1978) 117–118Google Scholar. Similarly, where a person is non-culpably in possession of a contraband object the law allows him a reasonable time to surrender it to the police.

9 [1983]Q.B.680

10 Lewis v. Cox [1985]Q.B.509.

11 Alan White in 92 L.Q.R. 582.

12 Hyam [1975] A.C. at 77C.

13 Nevertheless, judges sometimes deny that the defendant intended a result when they wish to procure his acquittal and see no other way open. In Att.-Cen. for Northern Ireland's Reference [1977] A.C. 105 a soldier fired his SLR rifle at a fleeing suspect who was less than 20 yards away, after shouting “Halt”; the man was killed. Lord Diplock approved the ruling of the trial judge that “in the agony of the moment the accused may have acted intuitively or instinctively without foreseeing the likely consequences of his act beyond preventing the deceased from getting away”. This is hard to accept. The proper ground of acquittal (though one that may be politically difficult) would be that shooting was or was believed to be the only way of preventing the escape of a person who, if the suspicion was well founded, was a dangerous criminal.

14 See Williams, Criminal Law: The General Part, 2nd edn 38ff.; Williams, , The Mental Element in Crime (Jerusalem 1965) Chap.1Google Scholar; Smith and Hogan, 5th edn 51; citations by Stuart, Donald in 15 Crim.L.Q. 162Google Scholar (Can.).

15 Stuart, Donald in [1968] Crim. L.R. 649Google Scholar, and writers there cited.

16 , Bentham, Introduction to the Principles of Morals and Legislation (ed. Burns and Hart 1970) 86–87Google Scholar.

17 Bentham used the phrase to cover consequences foreseen as “likely”, but this meaning of intention is now, rightly, rejected as being too wide. The alternative expression “indirect intent” is not so good as “oblique intent”. If you intend to do x in order to achieve y you “indirectly” intend y, in a sense, but it is not oblique intent.

18 See The Penal Code of Sweden, tr. Sellin, Thorsten (Ministry of Justice, Stockholm,1965)10Google Scholar.

19 Law Reform Commn of Canada, Report 30, cl. 2(4)(b). This proposal uses the single word “purposely” to cover both direct and oblique intention, which leaves a legislator no word to express direct intention alone. This, I think, is a mistake.

20 The Mental Element in Crime,Law Com. No. 89(1978).

21 14th Report, Cmnd 7644 of 1980, para. 10.

22 CI. 22.

23 , Duff in [1986] Crim.L.R. 773–774Google Scholar criticises this for omitting to require that the actor must act as he does because he wants the element to exist or occur. But it seems to me that this requirement is fairly implied in the formula.

24 I propose the insertion of the word “or” for greater clarity.

25 I would add the words “and could avoid such element by altering his conduct”. See n.8 above.

26 Hyam [1975] A.C. at 74C.

27 The Law Reform Commn of Canada at one time favoured this phrase (Homicide, Working Paper No. 33 of 1984), but in its final Report (n.19 above) it avoids (or conceals) the issue by saying that “a person acts purposely as to a consequence if he acts in order to effect that consequence or another consequence which he knows involves that consequence”. Knows for a certainty or knows for a probability? Would it not be better to bring the point out into the open?

28 This was the formulation of Lord Bridge in Moloney, but it is not clear whether he was speaking of oblique intent or direct intent. See text below at n.52.

29 [1985] A.C. 905.

30 [1986] A.C. 462.

31 This is convincingly demonstrated by Duff, R. A. in [1986] Crim.L.R. 774–775Google Scholar.

32 Note 12 above. Lord Hailsham took the illustration from a Report of the Law Commission (Imputed Criminal Intent, Law Com. No. 10 para. 18); its unsung source was my book The Mental Element in Crime (Jerusalem 1965) 34–35.

33 Lord Hailsham was giving judgment in a case (Hyam) in which it was held that murder could be committed without intention, by knowingly running a risk of a certain degree of gravity. But his sentence previously quoted shows that he regarded his hypothetical not as an instance of risk-taking but as one of intention. The actual decision in Hyam was set aside in Hancock [1986] A.C. 462; see , Duff in [1986] Crim.L.R. 775–776Google Scholar.

34 If the robber thought that there was an appreciable possibility that the officer might be able to jump out of the way, the case would be one of extreme recklessness, not intention (even conditional intention). See below at n.69 as to the distinction between recklessness and conditional intention. Admittedly the distinction involves some subtlety, but any distinction between intention and recklessness involves subtlety.

35 [1986] Crim.L.R. 777–778. The author, who argues for the narrow definition of intention, recognises that the terrorist must as a practical matter be convicted of murder, and proposes that a new head of mental element for murder should be added.

36 [1963] 2 Q.B. 561; cp. Lewis v. Dickson [1976] Crim.L.R. 442. The proposition in the text still stands, although the courts have relaxed their opposition to meetings on the highway.

37 See 121 N.L.J. 780.

38 See Knuller (Publishing etc.) Ltd [1973] A.C. 435 at 462. Cp. Chandler [1964] A.C. 763, where the lords seemed in effect to create an unbreakable link between freedom from obstruction for air force machines and the “safety or interests of the State”. However obvious the connection may be, should not the jury be left to decide it? They would, of course, be allowed to decide it as a matter of common sense or public knowledge, without evidence.

39 The point is pressed by , Duff in [1980] Crim.L.R. 150–151Google Scholar; but he modifies his position by accepting that oblique intent can come within the notion of “intentional action,” though not of “intended action.” This is too subtle a distinction to be useful for legal purposes. Neither judge nor jury would see any difference of meaning between saying that a killing was intentional and that it was intended; between saying that D intentionally killed V and saying that D killed V by an act intended to kill V.

40 The opposite objection is also advanced: that the doctrine of oblique intent is unnecessary, since direct intent does not involve desire. Reasons for rejecting this position were given at n.6 above.

41 [1980] Crim.L.R. 157.

42 See Spencer, John in [1985] Crim.L.R. 29Google Scholar.

43 [1947] K.B. 997, commented upon in the N.I. C.A. in Lynch [1975] N.I. at 49F–H; Williams, C.L.G.P. 2nd edn 40; Williams, , The Mental Element in Crime (Jerusalem 1965) 21–23Google Scholar. Lord Simon of Glaisdale, in D.P.P. for Northern Ireland v. Lynch [1975] A.C. at 699Google Scholar, after expressing some discomfort with Steane, said: “I do not suggest that the actual decision was wrong; but I would support it on the alternative ground that, when a person is placed in an unusual and stressful situation, it is unsafe to assume, even prima facie, that he intends the natural and probable consequences of his acts; so that the direction to the jury was misleading and inadequate.” This seems to me merely to restate the decision.

44 Lynch, last note, at 670B.

45 Although defence counsel mentioned the defence of duress, the Court of Criminal Appeal did not adjudicate upon it, saying that the burden of proof of duress was upon the defendant. This opinion was inconsistent with Woolmington [1935] A.C. 462 and is now rejected(Bone [1968] 1 W.L.R. 983, 2 All E.R. 644). Anyway, there was surely sufficient evidence of duress to take the defence to the jury. It is now recognised to be the duty of a trial judge to leave defences to the jury of which there is evidence even though they have not been relied upon by defence counsel.

46 [1971] 2 Q.B. 300.

47 [1949] 1 K.B. 194.

48 Hunter, above n.7.

49 Hyam, above at n.12. But Lord Hailsham has now laid himself open to criticism on the point. Having accepted the notion of oblique intent in Hyam, he failed to provide for it in his remarks in Moloney [1985] A.C. at 913E, where he said: “Foresight and foreseeability are not the same thing as intention although either may give rise to an irresistible inference of such”. Foresight of a consequence as certain should generally be accounted “the same thing as intention”.

See also Jim Smith in the C.C.A., [1961] A.C. at 297ff., explained by Smith, J. C. in [1986] Crim.L.R. 181–182Google Scholar. The C.A. was reversed by the lords; hinc illae lacrymae. In Moloney (as explained and corrected in Hancock) the lords reversed themselves and departed from Jim Smith, and the C.A. in Hancock consequently declared that the law was back to the situation in which it was when the C.C.A. decided Jim Smith: [1985] 3 W.L.R. at 1019A. This should mean that we have won back the rule for known certainties; but, as will be shown, the point is still unclear.

50 [1985] A.C. at 929B.

51 Ibid. at 925H. See the discussion of Bridge's, Lord propositions in the judgment of the C.A. in Hancock [1985] 3 W.L.R. at 1017HGoogle Scholar.

52 (1) It was unwise to introduce the word “natural.” If, as appears, Lord Bridge meant it is a synonym for “virtually certain,” it was a poor choice, because the two expressions are not synonyms in ordinary speech. Lynn in 137 N.L.J. 871 gives an example: “Conception is a ‘natural’ consequence of sexual intercourse but it is not necessarily probable”—much less (we may add) certain. It was because they saw that “natural” does not even mean “probable” that the lords later, in Hancock [1986] A.C. 462, disapproved the use of this word, when standing by itself without the addition of “probable,” in instructing juries; they evidently thought that it could convey too wide a meaning. It follows that they did not think that “natural” made a suitable synonym for “virtually certain” (though unfortunately they said nothing on virtual certainty, and nothing that could be read as an endorsement of the doctrine of oblique intention). (2) It was perhaps impolitic of Lord Bridge to refer to probability, even though qualified as “overwhelming probability,” without again insisting that what is here in issue is virtual certainty. “Virtual certainty” has, to my mind, a greater degree of precision than “overwhelming probability.” It starts from the clear notion of certainty and weakens it only slightly by the adjective “virtual,” which is better than admitting the probability, however qualified, is sufficient. (3) If by the words “establish the necessary intent” Lord Bridge meant “justify a verdict of intent irrespective of desire, this being the one case where intent does not imply desire,” then his words would be in substance acceptable, but he should have said that such knowledge is intention in law. It is a case not of x establishing y but of x being y.

53 [1961] A.C. 290.

54 [1985] A.C. at 928E.

55 Ibid., at 928A.

56 Above, n.43.

57 [1985] A.C. at 929D.

58 Ibid., at 926E.

59 , Duff in [1986] Crim.L.R. 777Google Scholar points out that if the traveller were asked whether he intended to travel to Manchester, his answer might depend upon the context of the question. This is true. But lawyers are concerned only with legal contexts. To put the question in a context relevant to the criminal law one has to imagine such an offence as intentionally going to Manchester, or taking a plane ticket with intent to travel to Manchester. If the traveller in the hypothetical were charged with such an offence, he should not have any defence based on the concept of intention, even if intention be defined in terms of purposive action. The traveller should not be heard to say “It was not my purpose to go to Manchester, because my purpose was to escape from the police”: on the facts supposed the two purposes would be coherent, not contradictory.

60 Nedrick [1986] 1 W.L.R. 1025; see the critical editorial note in Crim.L.R. 742.

61 O'Neill (1986) The Times, 17 October.

62 [1980] Crim.L.R. 152. Duff also makes the point that side-effects should not be counted as intentional if they are insignificant; but this consideration cannot arise in legal matters, where the side-effect is the actus reus of a crime.

63 [1955] A.C. 402 (P.C.); but see Gollins v. Gollins [1964] A.C. 644.

64 Duff would apparently agree that the husband in the case put “acted intentionally” in causing his wife to leave; he questions only whether the husband intentionally caused her to leave. This shows the thinness of the verbal line that Duff would have us draw.

65 [1951] A.C. 83.

66 (1882) 9 Q.B.D. 308. To provide for this case, the Law Commission Working Party on Codification recommended that the extended meaning of intention to include oblique intent should be declared not to apply to the illegal conduct of other persons (Law Com. No. 89 (1978) 56). The Commission silently dropped this proposal in its own recommendations: see Williams, in [1978] Crim.L.R. 588Google Scholar.

67 [1915] 1 K.B. 616.

68 German in origin, he was a naturalised British subject, but would in any case have been subject to our law of treason by reason of his residence here.

69 See Smith, J. C. in [1974] Current Legal Problems 116–119Google Scholar, commenting upon a previous discussion of my own. I would follow Smith's opinion, apart from his final reservation, which suggests that the notion of conditional intention should be applied only to conditional desire. I do not see any reason of policy for such a rule, and a distinction between oblique intent and primary intent in this single particular would look esoteric in a criminal code. (Professor Smith and his team did not venture to incorporate it in their Draft Code!)