Tadros - Criminal Responsibility - The Significance of Intentions

8
The Significance of Intentions
8.1 Introduction
The previous two chapters have been concerned with the kinds of action or event
for which the defendant can be held responsible. The role of the principles of causa-
tion and criminal omissions is to establish what the defendant is responsible for.
As we have seen, the analysis of the actus reus of criminal offences cannot be com-
pletely isolated from our moral evaluations nor from his mental states. Whether
the defendant caused a particular event, for example, turns in part upon his aware-
ness regarding his circumstances, and possibly his intentions as well. However,
that is not to say that a determination that the defendant has perpetrated the actus
reus determines completely the criminal responsibility of the defendant. Whether
the defendant is responsible for a particular actus reus does not even completely
determine the nature of the criminal offence with which he has been charged, let
alone any defences that he might have.
As I argued in Chapter 4, criminal offences properly include both a description
of the actus reus and mens rea terms. Mens rea terms, I argued there, play an import-
ant role in describing the conduct for which the defendant is to be charged and
perhaps ultimately convicted. In focusing on the role that criminal offences have
at the moment of conviction rather than their role in directing the practical rea-
soning of the accused, the central role of mental states in determining the scope of
criminal offences rather than the realm of defences becomes clear. Hence, it is
proper to discuss the nature and role that mens rea terms might play in the crim-
inal law before considering whether the defendant was entitled to any defences, as
is common in most of the orthodox literature.
It is commonly recognised that the concept of intention is central to establish-
ing that the defendant had the requisite mens rea such that he may be held crim-
inally responsible. Whilst a variety of mens rea terms are used in criminal law,
intention is regarded as the central term. However, the concept of intention plays
a variety of roles in the criminal law. The most basic of these is that, where the
defendant has performed the actus reus of a criminal offence, an intention to per-
form that actus reus is often at least a sufficient, if not always a necessary, condition
of establishing criminal responsibility for that actus reus. Beyond that, an inten-
tion to do something less than the actus reus of the offence might be sufficient to
Criminal Responsibility. Victor Tadros.

Oxford University Press 2005. Published 2005 by Oxford University Press.
The Significance of Intentions 213
be held criminally responsible for that actus reus, as in the English law of murder
which requires only an intention to cause grievous bodily harm. Conversely,
sometimes an intention to perform a further act will establish criminal liability
where the actus reus that has been completed is something less than what was fully
intended. An example is the offence of possession of a firearm with the intent to
endanger life. Closely related to that latter category are criminal attempts, where
the intention to perform an act grounds criminal responsibility once the agent has
moved beyond the stage of preparation in the commission of a criminal offence.
Finally, intentions may play a role in relation to other mens rea terms. For example,
intending to take a certain risk is one species of recklessness.
The focus on intentions is often understood as part of the shift in criminal law
from the use of moral terms to the use of descriptive terms. This is sometimes jus-
tified with reference to the rule of law. Moral terms are regarded as contestable in a
way that descriptive terms are not. Hence, it is thought, the use of moral terms
interferes with the rule of law in a way that the use of descriptive terms does not.
However, it would be foolish to suggest that the concept of intention is any less
contestable than most moral terms, given the extended debate that there has been
about the nature of intention. In fact, some authors think that the concept of
intention is a moral term, and others think that moral debate about criminal
responsibility and social attitudes towards defendants will inevitably infect the
definition of the concept as it is used in the law, although, as we shall see, at least
the former claim is only true in a very limited way.
This claim about the descriptive nature of the concept of intention is closely
related to a further claim that is sometimes made about intentions: that the cen-
trality of the concept of intention clearly shows the irrelevance of motive. That an
intention to v is sufficient for the defendant to have the mens rea for a criminal
offence, it is argued, shows that the fact that the defendant had a particular motive
for performing the actus reus of that offence is irrelevant. Of course, that would
not prove that motive is irrelevant at all, given all of the different roles that motive
might play, for example in other mens rea concepts, or in the context of defences.
As we shall see in Chapter 10, the reasons for which the defendant acted are clearly
This is one species of what are known as crimes of ulterior intent. A number of other variations
are discussed in J Horder Crimes of Ulterior Intent in A P Simester and A T H Smith Harm and
Culpability (Oxford: OUP, 1996).
The leading account is R A Duff Criminal Attempts (Oxford: OUP, 1996).
See A Michaels Rationales of Criminal Law Then and Now: For a Judgmental Descriptivism
(2000) 100, Columbia Law Review 54. Perhaps it is also this thought that lies behind Lord Goff s
claim that the term wicked, as used in the mens rea of murder in Scots law (on which, see below), is
emotive. See R Goff The Mental Element in the Crime of Murder (1988) 104 LQR 30.
See R A Duff Intention, Agency and Criminal Liability (Oxford: Blackwell, 1990).
See, for example, A Norrie Crime, Reason and History: A Critical Introduction to Criminal Law
2nd edn. (London: Butterworths, 2001) and N Lacey A Clear Concept of Intention Elusive or
Illusory? (1993) 56, MLR 621.
See, for example, Smith and Hogan Criminal Law 10th edn. (London: Butterworths, 2002)
707.
214 Part II: Doctrines of Criminal Responsibility
relevant as to whether the defendant is entitled to a justification defence, and

hence we might say that motive is relevant in that context. Furthermore, as we
shall see, the relationship between intention and motive is somewhat complex,
and if the proposition that motive is irrelevant is even to make any sense, it needs
carefully to be refined. Before analysing the normative significance of the concept
of intention it is worth briefly investigating the nature of that concept as it is used
beyond the law.
8.2 What is Intending?
The nature of intention has been subjected to extensive analysis both in the philo-
sophical literature, and in the context of the criminal law. It is not intended that
this section adds much that is novel to that discussion or that it will once and for
all resolve those debates. The most contentious and central claim in this section
will be that the concept of intention is a purely descriptive concept: it is a concept
that describes the psychology of an agent. It is not, as some have claimed, a moral
concept. Before making that point, however, I will describe some basic features of
the concept.
8.2.1 Mental Representation and Intention

The first thing to note about the use of the concept of intention is that it can be
used in relation to an action or in relation to a mental state that has not yet
resulted in action. On the one hand, we describe actions as either intentional or
unintentional. On the other hand, we may consider what intentions a person has,
and those intentions may or may not be related to any actions that the agent is
performing. Forming the intention to v may be a purely mental act, and, given
that ones intentions can be abandoned before being carried out, or even
attempted to be carried out, they may not result in action at all. Furthermore, it is
at least often the case that the person who knows what an agents intentions are is
the agent himself. The agent himself has special access to his intentions, although
it is possible that he blinds himself to his actual intentions. And his special access
does not appear to involve observation of himself. When one reports ones inten-
tions one is not investigating oneself in the way that one might investigate what
one feels. That is not to say that there is always something mysterious about what
a persons intentions are in performing a certain action. But it is at least sometimes
mysterious to an observer what a persons intentions are in performing a certain
See also D Husak Motive and Criminal Liability (1989) Criminal Justice Ethics 3.
I discuss the nature of wilful blindness in Chapter 9.
See P M S Hacker Intending in Wittgenstein, Mind and Will: Volume 4 of an Analytical
Commentary on the Philosophical Investigations (Oxford: Blackwell, 1996).
action where it is not mysterious to the agent herself. For the observer, it may be
unclear whether I intended to swat the mosquito on my girlfriends face or to hit
her with a magazine where I know, and with no doubt, that I intended to swat the
mosquito.
This feature of intentions leads some to think that the intention that an agent
has is identical to a particular mental state that he is in. Given that the term men-
tal state is itself rather unclear, and probably has inappropriate implications, it is
difficult to assess what to make of this idea. However, what is certainly true is that
an agents intention to v is not identical to the agent saying to himself, or other-
wise representing to himself, that he will v. Such a mental representation is neither
necessary, nor sufficient to establish that an agent intends to v. Let us see why
neither is true.
It is not necessary in that an intention may be manifest in an action without any
clear mental representation of that action taking place. Consider the following
example. In driving towards the traffic lights, Harry presses his brakes but they do
not work. He is asked afterwards why he crashed the lights and says that he
intended to stop but the brakes did not work. In order to establish that Harry
intended to stop, in this case, it is enough to show that he did not know that the
brakes did not work and that he in fact pressed them, that pressing them was a
purposive action and so on. It is not necessary to show that any particular proposi-
tion or other mental representation went through his mind. In fact, it is often the
case that actions such as driving can be performed without consciously represent-
ing to oneself the action that is to be performed before performing it.
Hence, we should not become distracted by the fact that intentions can be
established prior to actions, and that they may, therefore, be constituted without
bodily movement. This may lead us to think that such a mental phenomenon is
always present when the agent performs an action intentionally, or that inten-
tions, when isolated from action, are the real intentions, and that we should give
an account of those that is not dependent upon the confusing case of intentional
action. The fact that no mental state that can easily be distinguished from the
performance of the action itself is present does not require the conclusion that the
action is not performed intentionally. This is one reason to think that the relation-
ship between intentions and actions is not one of causation. It is not always the
case that an intention is formed which is temporally prior to the performance of
the action which the intention causes where there is intentional action.
One way in which the law of England and Wales has become confused in
relation to intentions has to do with the level of conscious awareness that is
This thought may well have motivated the objective definition of the mens rea of murder
proposed in DPP v Smith (Jim) [1961] AC 290.
See P M S Hacker Malcolm and Searle on Intentional Mental States (1992) 15, Philosophical
Investigations 245.
A warning also given by Elizabeth Anscombe in Intention (Oxford: Blackwell, 1957) 4.
See B Rundle Mind in Action (Oxford: OUP, 1997).
required to say about the defendant that he intended the consequences of his
action. The relationship between intention and foresight has led the courts to
direct juries in terms of the awareness of the accused in relation to the con-
sequences of his actions. But even if they think that such awareness is important
with regard to oblique intention (and as we shall see below, it is not) there is good
reason to deny its importance with regard to direct intention.
Consider domestic abuse. There is a well-known tendency for violence per-
petrated by one person in a long-term relationship on another to be systematic when
it occurs. It may well be that the more systematic violence becomes, the less reflec-
tive the perpetrator becomes about it. The first instance of violence may well be
done with a high degree of reflection. But as violence becomes habitual, it may well
be that the perpetrator thinks less and less about it, just in the way that we com-
monly think less and less about non-violent habitual action. But surely that should
not lead us to conclude that the defendant becomes less and less culpable for his vio-
lent acts. On the contrary, that the violence is habitual ought to incline us in the
opposite direction. That is well captured by the concept of intention. Such violence
is perpetrated intentionally, even if it is not done with a high degree of consciousness.
Mental representation is not sufficient for intention either. For the representa-
tion itself may not show commitment to performance of the action to ground an
intention. Saying to oneself over and over again I will defeat my opponent does
not show an intention to do so, for example, if one believes that one is very
unlikely to do so. In such a case, defeating ones opponent is a mere hope rather
than an intention. Intentions are formed only when one believes that one has
some decent chance of success. Similarly, saying to oneself that one will eat five
items of fruit and vegetables per day cannot be called an intention where, under
ordinary circumstances, the agent regularly fails to do so. Failure, in such circum-
stances, shows too little commitment to eating the fruit and vegetables for that to
be called an intention.
The nature of intention is intimately related to reasons. Acting intentionally is
acting for a reason. That is not just acting where there is a reason, even if the agent
recognises that there is a reason, but acting for a reason. When asking for the
intention with which the agent performed the action, we are asking what motiv-
ated him. If D vs, and he recognises that R is a good reason to v, that does not
mean that he intends R. For it may be that in fact D was motivated by quite differ-
ent reasons. For example, I may recognise that Harry is the best person for the job,
but may give him the job solely because I have been threatened by his violent
uncle. In that case, I intend to avoid the threat by the uncle, but not to give the job
See, for example, R v Moloney [1985] AC 905. For discussion of the unconvincing psychology
that the courts have used in such cases, see N Lacey A Clear Concept of Intention and J McEwan The
Verdict of the Court: Passing Judgment in Law and Psychology (Oxford: Hart, 2003) ch. 3.
For further discussion of the criminological literature in the context of substantive criminal law,
see V Tadros The Distinctiveness of Domestic Abuse: A Freedom Based Account in R A Duff and
S P Green Defining Crimes (Oxford: OUP, 2005).
to the best person. Following the discussion in Chapter 1, I will call the reasons for
which the agent acted motivating reasons.
Sometimes an agent may perform an action, knowing that it will have a certain
consequence, but that consequence does not provide the reason for the action.
Where D intends to v, knowing that ving will have a consequence c, but c does not
motivate D in ving, c is not intended. Jeremy Bentham called Ds attitude towards
c an oblique intention. In law the term foresight is sometimes used to describe
that mental state. Criminal lawyers distinguish oblique intentions from what is
called subjective recklessness. D is subjectively reckless with regard to c if c is not
one of the reasons for which D ved and D knew or believed that c might occur as a
result of ving.
Once again, the language used by the criminal law of England and Wales has
problematic implications in this regard. The term foresight might suggest the
defendant must have had a mental picture of the particular consequence in ques-
tion coming about. But surely that is not required. There are consequences that
we know will come about as a result of our actions that are not represented to us in
a mental picture. Confusion of this kind might also arise following the language
in R v Moloney where, in the context of murder, it was said that the inevitable
consequence of the defendants action must be present to the appellants mind to
be intended. There are consequences that one knows will happen (or that one
intends) that are not present to ones mind. For example, in swatting a fly I know
that I will kill a living creature. But the latter notion might not be present to my
mind, in the sense of a distinct mental event. That is to be distinguished from the
person who believes that all flies are mini robots, who, in swatting a fly, does not
intentionally kill a living creature.
Surely it is not intended that killings that one knows one is virtually certain to
commit, but that are not present to ones mind in this narrow sense of a mental
picture, are excluded from the law of murder. The person who blasts his way
through a crowded street with a shotgun knows that he is virtually certain to kill
someone, or at least to do them grievous bodily harm. Ought he not to be con-
victed of murder if the jury believe him when he says that no mental representation
regarding death came before his mind? In general, it would therefore be better if
An Introduction to the Principles of Morals and Legislation ed. J H Burns and H L A Hart
(Oxford: OUP, 1970) 86. Bentham distinguishes oblique intentions in that they are not causes,
whereas for me they do not provide motivating reasons.
The relationship between intention and foresight is still not fully articulated in English crim-
inal law. The leading case is now R v Woollin [1998] 4 All ER 103, in which it was held that if the jury
believe that the defendant was virtually certain that death or grievous bodily harm would come about
as a consequence of his action, they are entitled to find that he intended death or grievous bodily
harm, and convict of murder. On the surface of the text, the jury appear not to be required to find the
defendant guilty of murder in such circumstances. However, it may be that foresight of virtual
certainty of death or grievous bodily harm is an alternative to intention in the context of murder. For
discussion, see W Wilson Doctrinal Rationality after Woollin (1999) 62, MLR 448.
[1985] AC 905.
the phrase foresight that c was virtually certain was replaced by knowledge or
belief that c was virtually certain. This also has the advantage that the number of
concepts used by criminal law is reduced, given that knowledge and belief are
central to criminal responsibility.
8.2.2 Intentions: Normative or Descriptive?

On its surface, the concept of intention is purely descriptive. Whether D intends
to v seems to depend purely upon facts about D, rather than upon moral judge-
ment of D. Changes in our moral assessment of D seem, on the surface, not to
affect our judgement of whether D intends to v. What D intended often has moral
significance. But whether an intention is attributed to D does not in itself appear
to be sensitive to moral judgement. One obvious reason why this should be so
has to do with the distinction between motivating and normative reasons that I
began to outline in Chapter 1.
I suggested that the intentions that a person has depend upon the reasons that
motivate her. A persons intentions are to be distinguished from things that he
merely knows will happen as a result of his actions by virtue of the fact that the for-
mer motivate his action whereas the latter do not. Now we can see why intentions,
at least on the surface, appear not to be sensitive to normative considerations. The
reasons that motivate a person may or may not correspond to the reasons that
ought to motivate her. Motivating reasons do not always correspond to normative
reasons: the reasons that the person ought to have taken into consideration in act-
ing. A persons intentions are at least in part related to what that person takes to be
normative reasons for action, but that person may be right or wrong in their assess-
ment. If right, the motivating reasons correspond with normative reasons, if wrong,
they do not. For example, if D thinks that there is good reason to kill V and acts on
that reason, that person kills intentionally. They acted on the motivating reason to
kill V. But if there is no reason to kill V, that motivating reason does not correspond
to any normative reason. Our assessment of their state of mind involves holding up
their motivating reasons to scrutiny in the light of normative reasons.
It is often the case that concepts that, at first light, appear to be purely descriptive in
fact depend upon normative criteria. For example, whether D killed V seems not to
be sensitive to normative criteria, albeit that it is a fact that is clearly normatively sig-
nificant. However, it turns out that whether D killed V is normatively sensitive. It
depends on three facts, which are sensitive to norms: firstly, there is the question of
causation, which as I argued in Chapter 6 is normative, albeit in a particular way.
This is more or less the approach taken in the Model Penal Code s2.02(2)(b) (Proposed Official
Draft 1962).
See S Shute Knowledge and Belief in the Criminal Law in S Shute and A P Simester Criminal
Law: Doctrines of the General Part (Oxford: OUP, 2002) for an account of the use of those concepts in
English criminal law. See Chapter 9 for an account of how they should be used.
See Chapter 1 for further discussion.
Secondly, it depends upon the distinction between killing and merely causing death,
which, at least in some contexts, is sensitive to norms. Thirdly, it depends upon the
distinction between life and death, which is sensitive to norms about the status of the
victim (consider a disagreement between pro- and anti-abortion campaigners about
whether the foetus is killed in an abortion. The former may argue that as there is no
independent life, there is no killing, whereas the latter will maintain that there is).
Of course, for reasons that were outlined in Chapter 4, the fact that killing is
dependent upon normative criteria does not undermine the possibility that one
may kill justifiably. That D killed may communicate that a wrong has been per-
petrated. But such a wrong might have been perpetrated justifiably. The application
of a concept in relation to an action may involve normative assessment of some
kind, without that normative assessment involving all of the considerations that
would be relevant in making a judgement about the action.
There are two different ways in which the concept of intention is thought to be
sensitive to normative considerations. The first concerns the mental state of the
agent in relation to a normative description of his conduct. For example, suppose
that it is clear that D intended to cut Vs face leaving a scar. There is a question of
whether D intended to disfigure V. Is the answer to this question to be determined
by Ds understanding of disfigurement or rather is it to be decided on moral
grounds? I will show that the answer to this question is to be determined by moral
criteria rather than merely by the beliefs of the agent herself. The second concerns
the relationship between knowledge of virtual certainty and its relationship with the
concept of intention. It has been suggested that some things that I do knowing
them to be virtually certain, but which are not directly intended, I nevertheless do
intentionally. Both questions are addressed by Antony Duff in Intention, Agency
and Criminal Liability. It is only in the first context that the question of whether
D intended to v is sensitive to normative considerations.
The first question is discussed by Duff in the context of R v Steane. In that
case the defendant was charged with doing acts likely to assist the enemy, with
intent to assist the enemy contrary to Defence (General) Regulations 1939,
Reg. 2A. He was induced into making broadcasts for the Germans by threats
made to himself and his family. His defence was that he did not intend to assist the
enemy, but only to save himself and his family from the concentration camps.
It is sometimes argued that it is clear that Steane intended to assist the enemy.
Although he intended to save himself and his family from the concentration
camps, he intended to do this by assisting the enemy, and so intended to assist the
enemy. In fact, Duff rightly argues, the answer to this question is rather complex.
This problem, I think, accounts for some of the confusion outlined in A Norrie Crime, Reason,
and History ch. 3. (Oxford: Blackwell, 1990).
[1947] KB 997.
See, for example, A Norrie Crime, Reason and History 3940 and J C Smith Smith and Hogan:
Criminal Law 10th edn. (London: Butterworths, 2002) 73, although, with regard to the latter, see
the qualification in fn.19 which begins to allude to some of the difficulties.
For it is not clear what, in this context, amounts to assisting the enemy. The
broadcasts that Steane made may have been advantageous to the enemy, but they
may, fortuitously, have been disadvantageous to the enemy. If assisting the enemy
requires that the enemy actually has an advantage then broadcasting may or may
not assist the enemy. On the other hand, it may be that assisting the enemy is con-
stituted by doing acts which contribute to the plans of the enemy, whether or not
those plans are, in fact, advantageous to the enemy. Hence, Duff argues, whether
Steane intended to assist the enemy turns on the substantive issue of what kinds
of action the law should prohibit as assisting the enemy .
It might be argued, in contrast, that on a natural, as opposed to a legal, reading of
intention, whether Steane intended to assist the enemy cannot be said to turn on the
substantive reading of what it means to assist the enemy. The reason is that Steanes
understanding of what it means to assist the enemy may not be the same as the
appropriate substantive answer given by the law. If Steane thought that broadcasting
did not constitute assisting the enemy, then, it might be argued, Steane did not
intend to assist the enemy, although he clearly knew that his actions would probably
assist the enemy. That is so even if Steane was wrong, and it turns out that the proper
substantive reading of assisting the enemy is that doing acts which contribute to the
plans of the enemy constitutes assisting the enemy whether or not those plans are, in
fact, advantageous to the enemy. Obviously, straightforward mistakes about the
meaning of words do not have such consequences. The agent who tries to stop
intends to stop even if he does not know what the word stop means. But where
there is a moral contest about the scope of a word, it might be argued, the agents
interpretation of the scope can make a difference as to what he intends.
This interpretation of intentions is inappropriate at least as far as legal evalu-
ation is concerned. For one way in which an agent might display the appropriate
degree of culpability in respect of his action is by failing to realise that the action
falls within the relevant moral category. The reading suggested in the previous
paragraph would indicate that an agent who misunderstood the moral seriousness
of what he had done may fall outside the scope of a criminal offence simply as a
result of such a moral error. And surely that cannot be appropriate for the criminal
law at least. To see this, consider an agent who is charged with causing grievous
bodily harm with intent contrary to the Offences Against the Person Act 1861
s.18. Suppose that Wolfgang has beaten Andrei up, causing severe bruising, in just
the way that he intended. He argues that he did not have the intent to cause griev-
ous bodily harm because he did not believe the beating that he intended to be
grievous. Its just a little bruise, he argues. The jury, on the other hand, believe
that the bruising is grievous. Although there is a sense in which Wolfgang did not
intend to cause grievous bodily harm, the fact that he did not think that the bruis-
ing was grievous only shows him in a worse moral light than the agent who attacks
but realises that the bruising was grievous.
Intention, Agency and Criminal Liability 95.

If the law uses moral concepts, it must not be the defendants interpretation of
those concepts that is central to determining whether he is criminally responsible
under a particular definition. If the defendant intends to do an act which for
moral reasons falls within a legal concept, the fact that the defendant does not
properly understand the concept cannot exonerate him. The fact that the defend-
ant has made a moral mistake in failing to appreciate that his conduct falls within
the appropriate definition cannot be exculpatory. Although, in the legal context,
this interpretation is clearly right, however, that may be because the concept of
intention does not do all of the proper moral work that the law might hope that it
does. If Wolfgang does not believe his action to be grievous, then perhaps he does
not intend grievous bodily harm, although what he did intend was equivalent in
moral terms. This may be similar to the way in which knowledge of virtual certainty
that v will happen has been regarded as the moral equivalent of an intention to v in
at least some contexts. However, as in that case, if the law has moved beyond the
proper use of the concept of intention, it ought to be clear about that fact.
In determining whether Steane intended to assist the enemy, the moral question
of what constitutes assisting the enemy must be answered, and this is a very particu-
lar sense in which the concept of intention is sensitive to moral criteria. The appro-
priate reasoning that the decision maker should go through in determining whether
Steane intended to assist the enemy is as follows: does the decision maker think that
it is proved beyond reasonable doubt that the defendant intended to v where ving is
in fact identical to assisting the enemy? The determination of identity, in this case, is
a moral question. The intention to v is determined purely by the psychology of the
agent, and is not morally sensitive. The phrase intent to w, where w is a moral con-
cept, when it is used in the criminal law, is a shorthand version of the expanded
intent to v where ving is identical to wing. In this expansion, intent to v is not
determined by moral criteria, although the identity between ving and wing is.
This also demonstrates one way in which the motives of the defendant are irrel-
evant to determining his criminal responsibility. Wolfgang may not have been
motivated to cause grievous bodily harm. But that cannot be relevant to determin-
ing what offence he has committed. This is summed up by the celebrated Scots
lawyer Baron David Hume, who writes:
It is not material to the notion of guilt, that the offender have himself been fully conscious
of the wickedness of what he did. Though he were persuaded that it was innocent, or even
meritorious (such are the miserable effects of fanaticism in politics, and in religion), yet
still this cannot save him from the judgement of the law; which must be determined by the
nature of the act, and its evil consequences to the public, and not by any allowance for
those strange delusions, which are as dangerous as the vices of the most thorough malefac-
tor. The Judge cannot search into the heart of the prisoner; and even if he could, still be the
cause what it may, which impels a man to do such things as are subversive to society, his
will is not on that account less inordinate, or his nature the less depraved.
D Hume Commentaries on the Law of Scotland Respecting Crimes (Edinburgh: B R Bell, 1844)
vol. 1, 25.
In general, when evaluating the relationship between intention and motive, it is

worth being precise about what exactly is the focus. The defendants moral evalu-
ation of his own action in one sense determines what his motives are. For example,
in one sense at least, if he does not think that what he is doing is dishonest, he is
not motivated by dishonesty, even if he is wrong about this. But that cannot be
relevant to determining whether he is dishonest for the purposes of attributing
criminal responsibility. As noted above, the defendant cannot rely on his own
moral mistake about the proper description of his behaviour to exonerate himself.
Such mistakes display the very moral failing which the law is concerned with.
Against this, it has been argued by Alan Norrie that the law excludes considera-
tions of motive in order to exclude what might be proper moral arguments about
social context from the courtroom. But the exclusion of motive that is suggested
here does not deny that the defendant ought to be given a proper opportunity to
show that his interpretation of what was honest and what was not, or what was
grievous and what was not, was correct. Such an opportunity is invited by the use
of moral concepts within the law. The law ensures that the defendant cannot sim-
ply rely on his own evaluations. However, in doing so, it does not squash his
opportunity to exonerate himself through moral argument. Of course, that is not
to say that in fact the law has had a good record in moral and social evaluation of
the conduct of defendants. But if that is the case, it is not so much a result of the
conceptual framework of the law itself, but rather the application of the concepts
within that framework.
The second way in which the concept of intention is thought to be moral con-
cerns the use of the adverb intentionally. The use of the adverb is appropriate with
regard to some consequences that the agent knows will occur, but which do not pro-
vide motivating reasons for the agents actions. For example, the agent who shoots at
a target on the other side of a pane of glass breaks the glass intentionally even if he
cannot be said to have had the intention to break the glass. Now, it is only some
actions of that kind that are marked out as being performed intentionally. There are
some consequences of ones actions that one knows will occur, but which are not
brought about intentionally. As Duff notes, if I intend to cover a snow-covered lawn,
knowing that this will mark the snow, it is odd to say that I mark the snow intention-
ally. Similarly, when I turn on the lights, I do not intentionally make a clicking
noise with the switch, even if I know that a clicking noise will be made.
For Duff, the reason why this is so has to do with the attribution of responsibility.
The adverb intentionally, according to Duff, is used to attribute responsibility.
There is no point in attributing responsibility to the agent for something that
This is one problem that may have motivated the decision not to develop a purely subjective
interpretation of dishonesty in R v Ghosh [1982] QB 1053.
Crime, Reason and History 369.
Much the same argument as is contained in the remainder of this section is developed more
fully in my Practical Reasoning and Intentional Action (2000) 20, Legal Studies 104.
Intention, Agency and Criminal Liability 77.
there is no reason not to do. That would be to mark out the action as having a
significance which, in fact, it does not have. Duff puts it as follows:
When am I properly held responsible for bringing an effect about, or asked to explain or
justify my intentional action of bringing that effect about? When that effect is relevant to
my action, as providing a reason for or against it. An intended effect is relevant as forming
a reason for which the agent acts. If I cross the lawn in order to mark the snow, I make
myself responsible for its being marked: I must be ready to explain my intentional action of
marking the snow, by explaining why I thought that that was worth doing. An expected
but non-intended effect is relevant if it provides a reason against the action which caused
it . . . But if there is no reason not to mark the snow, I should not be said to mark it inten-
tionally: for it would then be senseless to hold me responsible for, to ask me to explain or
justify, marking the snow.
Now, it is immediately worth noting that, in making the concept of intention
depend upon what there is, in fact, reason to do or not to do, Duff s argument
makes the concept of intention depend upon something other than the psycho-
logy of the agent. The question about the agents intentions, for Duff, is answered
not simply with reference to what reasons motivated the agent, but rather what
normative reasons there are against the action that the agent performed.
This would have the consequence that whether an agent performed an action
intentionally depends upon an ethical judgement of that action: whether the
consequence that D knew would happen provided a normative reason against per-
forming the action. This has been criticised by Jennifer Hornsby who claims that
if we want to know whether a particular thing was brought about intentionally
then it is to her states of mind that we need to advert in order to settle the ques-
tion. This leads Hornsby to reject the idea that things that the agent knew
would happen, but which did not constitute reasons for the agents action, are
brought about intentionally.
Duff s position is not entirely without plausibility. It is not uncommon for the
question of whether an agent has a psychological state to be determined by fea-
tures external to the agents psychology, or to normative questions. For example,
the question of whether D knows that p depends upon whether p is in fact true.
But it also depends upon the method by which D formed the belief that p. Even if
D believes that p and p is true, D does not know that p unless the belief that p was
formed using appropriate methods. If I form the belief that Larry took bribes, and
Ibid 89.
See also M Bratman Intention, Plans and Practical Reason (Cambridge, Mass.: Harvard
University Press, 1987), who, at 124, writes An important role played by our scheme for classifying
actions as intentional is that of identifying ways of acting for which an agent may be held responsible:
our concern is not limited to the description and explanation of action, but extends to the assessment
of agents and to the appropriateness of reactive attitudes like indignation and resentment.
On Whats Intentionally Done in S Shute, J Gardner and J Horder Action and Value in
Criminal Law (Oxford: OUP, 1993) 66.
See also A P Simester Moral Certainty and the Boundaries of Intention (1996) 16, Oxford
Journal of Legal Studies 455.
I form that belief because Larry has a low forehead, and I dont trust people with
low foreheads, I do not know that Larry took bribes. And that is so even if Larry
took bribes. Normative assessment of the method by which my belief was formed
is central to whether or not my true belief amounts to knowledge. The question
is whether this is also true of intentions.
Given that whether D intends to v does not depend upon whether D would be
required to explain ving, it would be surprising if Duff was correct about this
being the explanation of when we use the concept of intention with regard to
things that D knows will happen. However, that does not require that we follow
Hornsby in supposing that the concept of intention cannot be expanded to apply
to any of the things that D does not directly intend, but which he knows will
definitely happen as a consequence of his action. As with direct intentions,
whether or not D ved intentionally depends not upon whether there was a normative
reason against D ving, but upon whether D believed that there was a normative
reason against ving, but ved nevertheless.
To see this, consider two senses of the phrase D intended to v despite x. In
one sense, x was a normative reason for D not to v. Whether this sense of the
phrase is appropriate does not depend upon whether D recognised that x was a
reason for D not to v. For example, we may say that Harry drove home at high
speed despite the fact that it was dangerous to do so whether or not Harry recog-
nised that the danger that he was creating was a reason against driving home at
high speed. We might express this as (D intended to v) despite x. This is the only
sense in which John Gardner and Heike Jung think that the term despite is used.
They write:
The word despite in the test for oblique intention . . . cannot be used in connection with
explanatory reasons. One cannot act despite ones reasons for so acting, the reasons which
explain ones action. One can only act despite reasons which actually applied, reasons
which prescribed or militated in favour of a different action in these circumstances.
However, there is another appropriate way to use the phrase D intended to v
despite x. Once again, we go astray when we assume that x can only amount to
normative reasons, as opposed to reasons that D believed that he had against ving.
If D thought that x was a reason against ving when in fact it was not, it is also appro-
priate to say that D intended to v despite x. We might express this as D intended to
(v despite x). An example might be the racist employer who employs a black per-
son despite the fact that he is black. The employer thinks that the colour of the
employees skin is a reason against the decision but, despite this fact, employs him.
This latter sense of despite marks out actions that are performed intentionally
from the set of actions that the agent knew that he would perform but that did not
I will discuss the normative aspects of belief formation in more detail in Chapter 9.
Making Sense of Mens Rea: Antony Duff s Account (1991) 11, OJLS 559 at 571. See also
A P Simester Moral Certainty and the Boundaries of Intention (1996) 16, OJLS 455.
amount to reasons for his action. In saying that such actions were performed
intentionally, we mark out the fact that those actions were significant within the
psychology of the agent, whether or not the agent was right to give them the sig-
nificance that they had. When we say that the employer employed a black person
intentionally, we mark out the fact that the employer believed the colour of the
employees skin to be significant: it was something that the employer was focused
on in performing the action.
This theory of intention preserves our intuitions about the use of the concept
with regard to some side effects that did not motivate the agent in acting without
detaching the criteria of intention from features of the agents psychology. It also
suggests that whether D ved intentionally is, in this sense, descriptive: it is not sens-
itive to whether we thought that there was a reason for D not to v, but rather
whether D believed that there was a reason not to v.
Let us summarise the central claim of this section, then. Where D vs, believing
that in ving he will also x, if x is a reason that motivated him in ving, he intends to x.
If he believes that x is a reason against him ving despite which he still ved he xs inten-
tionally, although he did not intend x. If he did not believe x to be either a reason for
or a reason against him acting, he knows that he will x. But he neither intends x, nor
xs intentionally. Hence, whether D vs intentionally depends almost entirely upon
facts about the world, albeit facts about Ds normative judgement of the world.
Barring cases where the object of the intention is normative, discussed above, the con-
cept of intention is purely descriptive. Of course, that is not to say that we are never
motivated to manipulate the concept of intention in the context of the criminal law,
or otherwise, to serve particular normative ends. But the fact that we can see that this
is a manipulation of the concept reveals that its core meaning is descriptive in nature.
8.3 Direct and Oblique Intention: Normative Application
One of the reasons why the concept of intention is useful in attributing liability is
that a persons intentions often reveal in a dramatic way their moral assessment of
the world. That D intends to v shows that D regards ving as a reason for action.
Regarding v as a reason for action normally reveals that D thinks that there is at
least something attractive about ving. However, regarding v as a reason for action
does not yet show anything very firm about Ds attitude towards v. We can see this
if we consider the distinction between intrinsic and instrumental goods.
An intrinsic good is something that is good for its own sake. Instrumental
goods, on the other hand, are good because they lead to other goods, either intrinsic
or instrumental. For a good to be instrumental, it must contribute to an intrinsic
good, though it may do so indirectly through other instrumental goods. Turning
the key is good because it starts the car. Starting the car is good because it allows
one to go for a fun drive in the country. Having a fun drive in the country is good
for its own sake. It is intrinsically good.
Of course, as noted above, that D intends to v does not reveal that ving is either
intrinsically or instrumentally good. However, it does normally reveal that D, in
ving, thinks that ving is either intrinsically or instrumentally good, or at least
attractive in some respect. Motivating reasons are distinguished from normative
reasons in that what a person thinks is worthwhile might not turn out to be
worthwhile. But they are often connected in that the agent, in having a motivat-
ing reason to v, commonly thinks that there is a normative reason to v. However,
that D intended to v does not tell us about the quality and strength of the reasons
that he recognised for and against acting. It only tells us that D was motivated to v:
and this shows that he did not believe that there was sufficient reason not to v.
The distinction between intrinsic and instrumental goods will help us to evalu-
ate Ds state of mind. On the one hand, D may have ved because he believed that
ving was intrinsically good. On the other, he may have believed that ving was
instrumentally good: he may have ved in order to w. That D believed that ving
was intrinsically good does not show that he thought that there was a strong rea-
son to v. Intrinsic goods may be very important or trivial. Actions that are per-
formed just for the sake of it such as whistling a happy tune or reminiscing about
what one did on holiday are intrinsically good without there being strong reasons
to perform such actions.
It may be argued that these are instrumental goods: that whistling a happy tune
is done to keep one amused, which keeps one happy. Or that reminiscing about
what one did on holiday is done in order to establish bonds of friendship, or to
ensure that the good things in ones life are not forgotten, which are powerful
intrinsic goods. But even if this is generally true, it is misleading to call those
goods instrumental for that reason. For whistling a happy tune is not independent
of keeping oneself amused, it is constitutive of it. Similarly reminiscing about
what one did on ones holiday is constitutive of establishing the bonds of friend-
ship or ensuring that the good things in ones life are not forgotten. Hence, they
are properly called intrinsically good rather than instrumentally good.
Where an action is performed because it is believed to be instrumentally good,
moral evaluation of the agent in his performance of the action often depends
upon the intrinsic good which the action is instrumental in bringing about. An
agent, in performing the action, commonly thinks that the intrinsic good aimed
at provides sufficient reason to perform the action which is instrumental in bring-
ing it about. However, he may recognise that the instrumentally good action is
either intrinsically or instrumentally bad at the same time. The action may be
wrongful in itself, or it may have negative side effects that constitute reasons
against performing the action.
For this reason we should be cautious about using the distinction between intrinsic and
instrumental goods to do much work in determining what is worth protecting and what is not, a
fault, as I perceive it, with the use of the broadly similar distinction between action and outcome
reasons by Jeremy Horder in Strict Liability, Statutory Construction, and the Spirit of Liberty
[2002] 118 LQR 458.
As noted above, an agent may act for a reason whilst believing that there are
reasons against the action. That an action is performed intentionally shows that
the agent thought that there was some reason to perform that action. However,
he may also have recognised reasons against the action. Moral evaluation of
an agents action sometimes depends not only upon the reasons for which the
agent acted, but also the reasons that he recognised against the action, even if
those reasons did not motivate the action. There may be wars that are justifiable,
but when a war is prosecuted without sufficient regret for the lives of the civilians
that are killed, those prosecuting the war manifest a lack of moral sense, and that is
so even if no more civilians are killed than is necessary. Moral evaluation of the
agent depends not only upon whether there was sufficient reason to perform the
action but also upon whether the agent had the proper attitude toward the reasons
against.
Furthermore, as we shall see in more detail in Chapter 10, whether an action is
justified depends not only upon the existence of sufficient reasons to perform an
action, but on whether the agent recognised those reasons as sufficient. There may
be reasons not to convict an agent who performs an action that there are sufficient
reasons to perform whether or not he was motivated by those reasons, but whether
the agent can be said to be justified in particular depends upon acting for the right
reasons.
Moral evaluation of an agents action, then, depends in part both on the reasons
which motivated that action, and the agents recognition of reasons against. And,
of course, even more fundamentally, it depends upon the extent to which the rea-
sons that the agent believed that there were for or against performing the action
corresponded to the reasons that there in fact were.
Given this complexity about the moral evaluation of intentional action, it may
seem surprising that the criminal law has become focused on intentions. For, as
can be seen from this analysis, that an agent vs intentionally provides only a small
part of a broad picture about the moral evaluation of action. For example, suppose
that D throws a punch in order to hit V in the face. D is motivated by hitting V.
Hitting V, it might be argued, is intrinsically bad. But how we evaluate Ds action
depends upon a number of factors. Whilst hitting V may be intrinsically bad,
there may be instrumental reasons to hit V. For example, perhaps V is in a state of
shock. Whether D is justified in hitting V might depend upon whether D hit V in
order to shake him out of his state of shock or for its own sake. Furthermore, how
we evaluate D morally in his hitting of V also depends upon him recognising that
there is good reason not to hit V. If D hit V in order to get him out of his state of
shock, but D did not recognise the reasons not to hit V, we think worse of him
than if he did recognise those reasons, even if hitting V was, in the end, justified.
And that is to say nothing of further features of the defendant, or the circum-
stances in which he found himself, that might play a role in determining our
moral assessment of his actions, such as anger, involuntary intoxication, social
circumstances, and so on.
That D threw a punch with the intention to hit V does not tell us enough properly
morally to evaluate Ds action on its own. This, it might be argued, provides us
with good reason to think that intentions should not have the significance within
the criminal law that they are currently given. Of course, that there are other fac-
tors relevant to moral evaluation does not show that intentions are not relevant to
moral evaluation. And the significance of intentions in the criminal law might
come from the relevance of intentions to moral evaluation of actions. Indeed,
I will argue that this is the case. What is clear is that the fact that D intentionally
ved often cannot determine our moral evaluation of Ds action alone, even if ving
is generally against the interests of others. For there may be further reasons which
make ving acceptable.
The solution to this problem in the criminal law is to distinguish between
offences and defences. In Chapter 4 I suggested that progress can be made in
understanding that distinction by focusing directly on the description of the
conduct for which the defendant ought to be convicted. Criminal offences, I
argued, ought to contain the appropriate moral description of the defendants
conduct. This provides a good reason to include mens rea terms in offence defini-
tions, even if it can be said that the performance of the actus reus was wrong in
itself. Mens rea terms are central to a positive description of what the defendant
has done, rather than being a mere absence, a feature of the situation that, were
things different, would be morally significant.
The question to be faced here is the role that intentions might play in such
descriptions. Now, it is clear that there is a sense in which acting intentionally is
different in kind rather than merely in degree from acting recklessly. But is that
difference sufficiently significant to warrant a special focus on intentions? The
reason why this question is important is that differences in kind may be too fine-
grained rationally to ground distinctions between offences. Other marks of
significance are required in order to justify distinctions between offences. Hence it
is not sufficient to suggest that intentionally caused harms are wrong in a way that
is different in kind from harms caused knowingly, recklessly, negligently and so
on. That alone would not justify the focus of the criminal law on intentions. The
difference must be significant in some further way in order to justify the special
focus on intentions. As is common in criminal law theory, and moral philo-
sophy more generally, I will focus on the relationship between harms that the
agent intends to cause and harms that the agent knows that he will cause.
See J Horders discussion of the vice of particularism in Rethinking Non-Fatal Offences

Against the Person (1994) 14, Oxford Journal of Legal Studies 335. See also C M V Clarkson Context
and Culpability in Involuntary Manslaughter in A Ashworth and B Mitchell Rethinking English
Homicide Law (Oxford: OUP, 2000), particularly in his critique of J Gardner Rationality and the
Rule of Law in Offences Against the Person at 143. For further discussion, see V Tadros The
Distinctiveness of Domestic Abuse: A Freedom-Based Account.
See also A P Simester Why Distinguish Intention from Foresight? in A P Simester and
A T H Smith Harm and Culpability (Oxford: OUP, 1996) 80 for a claim along similar lines.
It has been argued that harms brought about with a direct intention are morally
indistinct from harms that one knows one will bring about. Others claim that
harms intentionally caused are significantly distinct from harms knowingly
caused. For example, John Finnis claims that the distinction between intended
wrongs and wrongs that one knows that one will bring about (what he calls side-
effects) is based on choice:
That something is a side-effect rather than an intended means entails the satisfaction of
one, important, but only one, moral requirement: that one never choose intend to
destroy, damage or impede any instantiation of a basic human good.
Of course, in a sense, one does choose to bring about those things that one knows
will come about as a result of ones actions, as Andrew Simester has noted.
However, for Finnis, this kind of choice is not the right moral focus. For it is only
those things that one intends directly that are constitutive of oneself. He argues as
follows:
Now, in choosing, one adopts a proposal to bring about certain states of affairs. And the
states of affairs which one commits oneself to bringing about ones instrumental and
basic purposes are precisely those identified under the intelligible description which
made them seem rationally appealing and choosable. And what one thus adopts is, so to
speak, synthesised with ones will, i.e. with oneself as an acting subject; one becomes what
one saw reason to do and chose and set oneself to do in short, what one intended.
Nothing but contrary free choice(s) can reverse this manifold self-constitution.
The point that Finnis is making here may seem rather obscure. There is a sense in
which both the person who directly intends (let us say unjustifiably and without
excuse) to kill and the person who knows that his action will cause the death of
another choose to kill. In both cases there is an exercise of will which reveals
the attitude of the agent towards the death of another. Furthermore, in both cases that
attitude shows disregard for the value of the human life of that other. Why, then, is
it only the direct intention to kill that is constitutive of self ?
Certainly, as Finnis notes himself, there is a variety of mental state terms that
are commonly used morally to refer to the person who knows that he will unjusti-
fiably harm another. We say that the other was harmed wilfully or voluntarily. It is
certainly wrong to say that he was harmed unintentionally, for this suggests that
the harming was involuntary. All of that marks out the fact that we do think it
Andrew Ashworth thinks that they are sufficiently close that foresight of virtual certainty ought
to be bracketed with direct intention rather than recklessness. See Principles of Criminal Law 4th edn.
1756. See also A P Simester Why Distinguish Intention from Foresight?, albeit that Simester does
think that there is a difference between the two as far as justification defences are concerned.
Intention and Side-effects in R G Frey and C W Morris Liability and Responsibility: Essays in
Law and Morals (Cambridge: CUP, 1991) 56.
Why Distinguish Intention from Foresight? Ibid 612.
Intention and Side-effects in R G Frey and C W Morris Liability and Responsibility: Essays in
Law and Morals (Cambridge: CUP, 1991) 48.
morally significant that a harm was brought about knowingly by the agent even if
that harm was not a reason for his action. Furthermore, such phrases often do not
mark out much of a moral distinction, at least in terms of gravity, when compared
with directly intended harms. The person who unjustifiably kills with the requis-
ite intention is not to be distinguished in any great way from the person who
unjustifiably kills knowingly where the killing was not a reason for his action.
Whilst the wrongs perpetrated are different in kind, that difference in kind does
not seem particularly morally significant. Hence, there may be good reason in the
law of murder not to distinguish between intended killings and killings that are
merely foreseen.
In fact, some would go further, and suggest that foreseeing the risk of death
ought to be incorporated into the mens rea of murder. An intermediate view has
recently been defended by Antje Pedain, who claims that it is sufficiently morally
abhorrent intentionally to risk death to constitute murder where death comes
about. Intentionally risking death is placed by Pedain within the mens rea of
murder, to be distinguished from merely foreseeing the risk of death, which con-
stitutes only recklessness and hence would result in a conviction of manslaughter.
On this theory, intention continues to play an important role, as distinct from
knowledge, but in this case an intention to take a risk.
Unfortunately, such a strategy is unlikely to map neatly onto the distinction
between those who deserve to be labelled murderers and those who do not. There
are many considerations that might help us to determine whether the defendant
deserves to be called a murderer. Whether the defendant intended a risk or merely
foresaw that risk may be relevant to that question, but it cannot determine the
issue alone. The quantity of the risk must also be a significant factor in determin-
ing whether the defendant deserves the label murderer.
Pedain considers the following example. A terrorist puts a bomb in a building.
He warns the authorities who attempt to evacuate the building, and also send the
bomb disposal squad to defuse the bomb. He does this in order to appear danger-
ous and powerful. He would prefer it if no-one were killed: although he wants to
appear dangerous and powerful, he does not want to kill to achieve this. However,
he is willing to expose others to the risk of death to achieve his end. The bomb
goes off and kills a member of the bomb disposal squad. Pedain argues that the
fact that the terrorist intended to expose the bomb disposal squad to a risk of
death is sufficient for him to be convicted of murder. It would be different, she
English law also fails to distinguish between cases in which the defendant intends to kill at the
one extreme and cases in which the defendant knows that he will cause grievous bodily harm on
the other, where in both cases death is caused. Both cases are murder. That, arguably, broadens the
category of murder too much.
See G Gordon The Criminal Law of Scotland 2nd edn. (Edinburgh: W Green, 1978) 7378,
R Goff The Mental Element in the Crime of Murder.
Intention and the Terrorist Example [2003] Criminal Law Review 579. See also W Wilson
Murder and the Structure of Homicide in A Ashworth and B Mitchell Rethinking English Homicide
Law (Oxford: OUP, 2000).
claims, if the terrorist did not want the member of the bomb disposal squad to be
exposed to the risk of death. Then the terrorist would be merely reckless.
How are we to determine whether the terrorist intends to expose the bomb dis-
posal squad to the risk of death, or merely foresees such exposure? Pedain argues as
follows:
This question, in my view, needs to be answered with reference to what we know would
have been the terror-bomber-announcers alternative course of conduct which he has actu-
ally rejected to pursue: the one in which he desists from making the bomb live, where he
places an actually harmless object in a public place. We also know why he decided against
it: because in order to achieve his desired objective, he wanted there to be a real risk of harm
resulting from his actions, not just a temporary illusion of such a risk.
Of course, as noted, in determining whether the risk was intended or merely
foreseen, whether the actual risk was a reason for action is the important fact.
However, in this case, it is not clear that the actual risk was the real reason for
action. It is true that the terrorist would not have been happy with a mere tempor-
ary illusion of such a risk. But he may well have been happy with a permanent
illusion of such a risk. If the option had been available to the terrorist of creating a
non-dangerous mock bomb, which no-one would be able to detect was not dan-
gerous, presumably he would have done that: that would have fulfilled his purpose
of appearing dangerous and powerful without creating the risk of death, which he
did not want to occur. That suggests that exposing others to the actual risk of
death was not one of the reasons for the action of the terrorist in planting the real
bomb. His reason for action was to create the appearance of the risk: that he would
actually create a risk is merely a foreseen side effect. But surely that does not sug-
gest that the terrorist should be acquitted of murder.
That is not to say that the distinction between intended risks and foreseen risks
is not morally significant. There may well be circumstances in which it is morally
significant. But the distinction cannot always play the role of distinguishing
between those who ought to be convicted of murder and those who ought not to
be so convicted. The courts, and academics, have been searching for some time for
a precise concept that can do the work of making such distinctions. My suspi-
cion is that there are too many factors involved in assessing whether the defend-
ants state of mind and attitude towards death shows sufficient moral depravity to
be convicted of murder for a bright line to be drawn. Given that the distinction
between murder and manslaughter does not play a role in guiding the conduct of
citizens in their social lives, there may be good reason to use a concept that is
Ibid at 588.
Pedain rightly takes it as a given that a murder conviction would be appropriate in the terrorist
example outlined here. See 580.
To take two influential examples, the desire for a precise boundary between murder and
manslaughter based on the distinction between intention and recklessness appears to drive the analy-
sis in Smith and Hogan Criminal Law 707 and G Williams The Mens Rea for Murder: Leave it
Alone (1989) LQR 387.
somewhat vague to constitute the mens rea of murder, as is the case in Scots law.
But I will not argue for that fully here.
However, the distinction between intention and foresight might play a role
beyond the law of murder, and there is good reason to think that we ought to look
beyond the law of murder to investigate our intuitions about the significance of
direct intentions. The reason that we ought to look beyond the law of murder is
that killing is about as significant a harm as can be done to another. Consequently,
whether the killing was done intentionally or merely voluntarily makes little
difference. The mode of killing may have some moral importance, but that import-
ance is likely to be insignificant in determining our emotional response to the
death. That D knew that he was going to kill V by his action is often sufficient to
ground our abhorrence for his action. Whether killing V was a reason for his
action or a side effect does little to alter our sense of abhorrence at Ds willingness
to take Vs life. In fact, as I have suggested, even taking substantial risks with the
life of another which result in death might properly be categorised as murder in at
least some circumstances, even if D does not wish those risks to be realised.
However, criminal offences are not all of the kind where the consequences recog-
nised provoke such a level of abhorrence. By focusing on harms which do not
provoke such a response, we will be able to see more clearly the moral significance
of the distinction between intending a consequence and knowing that it will come
about.
For example, there may be good reason to distinguish between intentional
criminal damage and merely knowing that criminal damage will come about as a
consequence of ones actions, particularly if the damage caused is relatively trivial.
Suppose that I walk across your lawn, intending that the grass will be damaged.
That seems to be a significant moral wrong. Now compare the case where I walk
For a balanced analysis of Scots law, see G Gordon The Criminal Law of Scotland 2nd edn.
7378. In fact, the concept in Scots law is no vaguer than the concept in English law. Whilst the con-
cept of indifference may not be entirely precise, neither is the concept of intention, particularly where
that includes intention to do grievous bodily harm. As has often been noted, the distinction between
grievous bodily harm and actual bodily harm is quite imprecise: the distinction is based on harms that
are really serious and harms that are not: hardly impressive in terms of precision. If that is true, it is
also true that determining whether D intended grievous bodily harm will be even more imprecise.
Imprecision in the distinction between GBH and ABH is compounded by any further imprecision in
the concept of intention. Perhaps the mens rea of murder in Scotland is actually more precise than it is
in English law. It is also worth noting here that the concept of indifference is not ideal to do the work
assigned to it either. There may be circumstances in which the defendant foresees that death is likely
to occur and actively does not want death, but shows himself not to care about death sufficiently to
show himself deserving of the label murderer.
Some of the arguments in R Goff The Mental Element in the Crime of Murder seem to me
still to have much force despite the (rather bad tempered and not particularly cogent) response in
G Williams The Mens Rea for Murder: Leave it Alone.
For a critical account of the way in which the concepts of criminal responsibility have been
developed around the offence of murder in particular, albeit the context of a different kind of argu-
ment, see L Farmer Criminal Law, Tradition and Legal Order: Crime and the Genius of Scots Law 1747
to the Present (Cambridge: CUP, 1997) ch. 5.
across your lawn merely knowing the grass will be damaged. In that case, the
wrong seems much less significant. It is at least intuitively plausible that the for-
mer ought to be criminal where the latter ought to be merely delictual.
Why should this be the case? The most obvious moral difference between direct
and oblique intentions is that it is in his direct intentions that the agent shows some
commitment to bringing about a certain state of affairs. Once intentions are set,
the end is to be pursued. As noted earlier, a course of action is set which is usually
partial. The agent normally responds in a complex manner to various obstacles
which might stand in his way to achieve the end. In this sense, intentions are cen-
tral to autonomous action. For in carrying out our intentions, we show the kind of
independence that is key to living an autonomous life. It is no accident, then, that
the concept of intention can be used both in relation to planned and spontaneous
action. Both kinds of action are central to autonomy. There is a profound link
between what is done intentionally and the living of an autonomous life, even if it
is the case that not all agents that can form intentions live autonomously.
Mere knowledge of the consequences of ones actions does not show the same
kind of commitment to those ends. As I noted earlier, that one knows what will
happen as a result of ones actions is consistent with wanting that consequence to
come about, disappointment at its coming about or complete indifference to that
consequence. Of course there is a sense in which an agent might form a direct
intention to v whilst regretting his intention to v. He might think that ving is
instrumentally good but intrinsically bad. It is even possible to intend to v and
hope that one does not v. Suppose that I want my tennis partner to beat me at ten-
nis. I think that it will be good for his self-esteem and he has taken a series of bad
blows to his ego recently. However, I only want him to beat me fair and square and
not merely because I let him: the latter, I think, would be patronising. And any-
way I am conscious that I do not have the ability to let him win without it show-
ing, which would diminish rather than enhance his self-esteem. In this case, it is
perfectly consistent to intend to win the match and yet hope that I do not. Despite
that, in forming the intention to win I commit myself to winning. I integrate
winning the match into my plans. It is that kind of integration that is missing by
mere side effects. To those I show no such commitment.
Why should this kind of commitment matter? The reason is that identification
with a morally abhorrent project is often worse than mere recognition that it will
occur as a result of ones actions. It is in this sense that Finnis is right that, in his
somewhat inflated language, it is through our direct intentions rather than our
oblique intentions that we constitute ourselves. Through our direct intentions we
identify with a particular end. And in so identifying we express the fact that we find
that end, at least in some sense, worthwhile, either intrinsically or instrumentally.
It may be that the difference need not be built into the definition of the offence, but can rather be
dealt with through prosecutorial discretion. Whether the consequences of criminal damage are severe
or trivial obviously depends on the nature of the property damaged and the extent of the damage.
The significance of this kind of commitment is shown most clearly in the criminal
law in relation to incitement. In cases of incitement, identification with the
actions of others clearly makes a significant moral difference over mere knowledge
that those actions will occur. For example, in telling Harry that his wife, Jill, is
having an affair, John may know that it is virtually certain that Harry will kill Jill.
But that might not be sufficient reason to convict John for inciting Harry to kill
Jill. Simply by telling Harry the news, John does not associate himself directly
with Harrys action and hence, we might argue, ought not to be convicted of
incitement. On the other hand, if the reason John tells Harry is that he thinks that
it will encourage Harry to kill Jill, it is plausible that John ought to be convicted of
incitement. In that case, he has associated himself directly with Harrys action: it
provided the reason for his action. If Harry killing Jill is not the reason that John
tells Harry about Jills affair, John is entitled to say that the killing was entirely
Harrys responsibility. John has in no way committed himself to Harrys action,
and it is this that is required to make John partially responsible for Harrys action.
It is interesting to note that the same conclusion is not always apt with regard to
other auxiliary offences such as aiding and abetting or attempts, particularly
where the consequences adverted to are severe. Duff suggests that only direct
intention is sufficient for a defendant properly to be convicted of a criminal
attempt. Duff s approach to the mens rea of attempts seems implausible in the
context of some offences. Consider the famous example of the defendant who
puts a bomb on a plane to get the insurance money, knowing that, if he succeeds
in his plan, it is virtually certain that the passengers will be killed. If the bomb does
not go off, surely that must be sufficient for a charge of attempted murder.
However, Duff s approach might be plausible with regard to lesser offences such
as attempted criminal damage or attempted common assault. There, the fact that
knowledge of virtual certainty does not, in ordinary language, constitute the state
of mind of an attempt has greater significance given the less serious nature of the
harm adverted to. The fact that the moral difference between the person who
directly intends to kill and fails and the person who knows that, if they succeed in
fulfilling their intention, they will certainly kill, and fails to fulfil their intention, is
so slight makes it acceptable for the criminal law to fail to distinguish between the
two by calling both an attempt. This is so even though the ordinary meaning of
the word attempt implies direct rather than oblique intention.
More ambiguous is the case of aiding and abetting. At first sight it seems as
though helping another requires a direct intention to assist, and that this should
make a direct intention a requirement for aiding and abetting. Merely doing an
act which one knows will help another to commit an offence seems too limited a
commitment to the acts of another to amount to aiding and abetting. Martha
knows that John intends to burgle Simons house. Simon is Marthas neighbour.
R A Duff Criminal Attempts (Oxford: OUP, 1996) 36971.

On which, see ibid 201.
It will be difficult for John to escape through Marthas garden as there is a hedge
blocking the way. Martha dislikes the hedge. She cuts it down, knowing that this
will make it easier for John to escape. In that case, it seems that Marthas act is too
disconnected from Johns for Martha to be found guilty of aiding and abetting.
However, it would be different if Martha directly intends to aid Johns escape by
cutting down the hedge.
On the other hand, what is clearly not required is that an improved chance of
the principal succeeding in the commission of the offence must be one of the rea-
sons for the action of the aider. If the aider only intends to profit from his actions,
not caring whether the principal has an improved chance of success, that ought
not to rule out liability for aiding and abetting. For example, Layla wants to rob a
bank and asks Daniel to get her a gun. She pays Daniel 200 for the gun. Daniel
knows that the gun will help Layla to rob the bank, but does not care whether or
not she is successful. He is only in it for the money. If his actions would in fact
have hindered Layla, he would still have performed them, for all he cares about is
the money. In that case, Daniel does not directly intend that his actions are of
assistance to Layla. He is not motivated by whether his actions will actually help
her, but only by the money. However, surely Daniel is guilty of aiding and abet-
ting. The difference may lie simply in the communication between Daniel and
Layla when compared with Martha and John. In this case, although direct inten-
tion that Layla will be assisted is not a requirement of aiding and abetting, it is
clear that there is no equivalence between direct and oblique intention. It is at
least sometimes the case that oblique intention that ones actions will assist
another in the commission of a criminal offence is insufficient to ground liability
for aiding and abetting.
8.4 Conclusions
The importance of the distinction between direct and oblique intention is not
clear cut. There are certainly circumstances in which the criminal law appropri-
ately regards oblique intentions as of a similar moral gravity to direct intentions.
Where we are dealing with a principal offence and the harm which the offence
deals with is very great, the distinction between direct and oblique intention is not
sufficiently significant in moral terms to distinguish between offences. Indeed, in
such cases, there is a further question whether direct intentions are even to be
distinguished from cases of recklessness, where the defendant adverts to a high
probability that the harm will be caused as a result of his actions. That Scots law
includes cases where the defendant takes a serious and unjustifiable risk with the
life of another, and that other in fact dies, within the offence of murder seems to
me quite right. The person who puts a bomb in a shop in order to cause fear and
panic, but knowing that others will most likely die from the blast, seems to me
sufficiently bad in terms of moral wrongdoing properly to ground liability for
murder if citizens are killed by the blast. That the blast might have gone off in the
night when no-one was in the shop seems to me to do relatively little to distinguish
that case from the case in which the defendant believes that the blast will definitely
kill the shoppers.
However, our intuitions about such cases should not lead us to the conclusion
that there is no difference to be made between direct and oblique intentions, or
oblique intentions and recklessness. That depends very much upon the context.
Such distinctions become more important as we consider offences beyond the law
of murder. The fact that most of the discussion about the relationship between
direct and oblique intentions has taken place in the context of killing has almost
certainly coloured the understanding of criminal lawyers of that distinction. That
a distinction does not have moral significance in one context does not entail that it
has no moral significance in every context.
This is a further reason why we should be suspicious of the expansion of the
concept of intention to include those actions committed intentionally, where the
agent recognises the reasons against the performance of the action but performs it
anyway. Even if Duff were right, and this expanded use of the concept did capture
our moral intuitions in some contexts, that is not to say that the same conclusion
must be drawn in every context. It is better for the criminal law to be precise:
properly to distinguish between direct intentions and oblique intentions, and to
consider each context afresh to decide whether the distinction has sufficient moral
gravity to make a difference as far as criminal responsibility is concerned.
Adopting a uniform approach to the question is almost certainly unsound.
Hence, whilst it is acceptable that such concepts are developed in the general part
of the criminal law, the relationship between the concepts must be left to analysis
of the special part.

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8

The Significance of Intentions

Criminal Responsibility. Victor Tadros.

relevant as to whether the defendant is entitled to a justification defence, and

8.2 What is Intending?

8.2.1 Mental Representation and Intention

8.2.2 Intentions: Normative or Descriptive?

Intention, Agency and Criminal Liability 95.

In general, when evaluating the relationship between intention and motive, it is

8.3 Direct and Oblique Intention: Normative Application

See J Horders discussion of the vice of particularism in Rethinking Non-Fatal Offences

R A Duff Criminal Attempts (Oxford: OUP, 1996) 36971.

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