‘The Law Commission’s review of the law of intention

‘The Law Commission ‘s reappraisal of the jurisprudence of purpose confirms the position… that the English jurisprudence of purpose for slaying is based upon an apprehension that lacks in two opposite ways. First, as respects direct purpose, the jurisprudence is morally under-inclusive in that it places excessively much moral weight on a psychological construct of the needed mental province. It hence fails to recognize decently the issue and significance of the construct of ‘indiscriminate maliciousness ‘ . Second, as respects direct and indirect purpose, the jurisprudence is morally over-inclusive, neglecting to distinguish blameworthy and non-culpable Acts of the Apostless. ‘ ( Norrie, 2006 )

Critically discuss the above statement with mention to the philosophy of purpose in relation to the offense of slaying and the Law Commission ‘s Consultation Paper Homicide ( No.177, 2005 ) .

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Before we commence our treatment, allow us foremost be rather clear on what is meant by ‘direct intention’ , ‘indirect intention’ and ‘indiscriminate malice’ in the context of the above statement.

Intention literally means ‘aim or aim that guides an action [ 1 ] ’ . Therefore, ‘direct intention’ , in the context of slaying, means an act committed with the direct intent of killing, or doing serious injury to, another. This has been one of the work forces rea demands for slaying as far back as the 17ThursdayCentury [ 2 ] . Clearly, this precludes an purpose to accomplish another condemnable intent wholly, where the histrion ought moderately to hold foreseen, but did non straight intend, the decease of another to be a virtually certain consequence of his actions, e.g. the purpose of a ‘person who places a bomb on a plane for the intent of doing an insurance claim in regard of belongings but who foresees as a practical certainty the decease or serious hurt of those who are on the plane when the bomb explodes. [ 3 ] ’ This is what Norrie refers to as ‘indiscriminate malice’ ; ‘malice, ’ in that the histrion intended to execute an illegal act, and ; ‘indiscriminate, ’ in that the histrion paid small or no respect to the virtually certain effects of his actions, viz. the decease of another. It has long been recognised that the jurisprudence should convey actions of indiscriminate maliciousness within the range of the offense of slaying, but that a rigorous demand of ‘direct intention’ would neglect to make so ; ‘direct purpose is merely ‘too narrow for the intents of condemnable duty [ 4 ] ’ . Therefore, the construct of cognitive ‘indirect intention’ was born, introduced into English jurisprudence in the instance of Nedrick [ 5 ] . Such purpose does non hold to be direct, but can simply affect a grade of foresight which, if possessed, should justify a strong belief of slaying instead than manslaughter, a offense which denotes a excessively low a grade of condemnable and moral blameworthiness for actions where the decease of another is virtually an incidental certainty. This philosophy, in its current signifier, was laid down by Lord Lane CJ Nedrick [ 6 ] in 1986, and modified by Lord Steyn in Woollin [ 7 ] : “Where the charge is slaying and in the rare instance where the simple way is non plenty, the jury should be directed that they are non entitled to happen the necessary purpose, unless they feel certain that decease or serious bodily injury was a practical certainty ( excluding some unanticipated intercession ) as a consequence of the defendant’s actions and the suspect appreciated that such was the instance. [ 8 ] ”

Some observers have argued, as Norrie does at the top of this paper, that such an extension has gone excessively far ; whilst indiscriminate maliciousness now clearly comes within the range of this drawn-out purpose demand for slaying, which is a good thing, other actions are now besides included under the offense of slaying, offense which, due to the deficiency of condemnable and moral blameworthiness involved, would be more reasonably labeled as manslaughter. An illustration of such an action being so below the belt labeled was provided by Lord Goff in the Nathan Committee Report by the House of Lords Select Committee on Murder and Life Imprisonment [ 9 ] : “A house is on fire. A male parent is trapped in the Attic floor with his two small misss. He comes to the decision that unless they jump they will all be burned alive. But he besides realises that if they jump they are all [ virtually certain ] to endure serious personal injury. The kids are excessively frightened to leap and so in an effort to salvage their lives he throws one out of the window to the crowd waiting below and he jumps with the other one in his weaponries. All are earnestly injured, and the small miss he threw out of the window dies of her injuries.” The Law Commission, in mentioning and analysing this illustration, came to the decision that the male parent in this instance should non be labeled a liquidator. Under the construct of ‘indirect intention’ nevertheless, the male parent should be guilty of this second-degree offense. As Norrie notes [ 10 ] , the Law Commission were forced to reason that ‘indirect intention’ , by concentrating on the cognition of the male parent instead than the wants behind his actions, was morally over-inclusive, neglecting to distinguish right between blameworthy and non-culpable Acts of the Apostless, i.e. between actions of indiscriminate maliciousness, such as the insurance fraudster who blows up the plane with no respect to the life of those on that plane, and actions affecting no maliciousness, but which are indiscriminate in their effects, such as the actions of the despairing male parent in Lord Goff’s illustration above.

In this paper I shall turn to these concerns in item, reasoning that a cognitive attack to purpose may merely be unsuitable for the offense of slaying ; it fails to adequately demark the boundaries of blameworthiness between this offense and that of manslaughter. I shall so analyze the Law Commission’s Consultation Paper Homicide ( No.177, 2005 ) , and shall critically discourse their attack to these jobs, reasoning with an appraisal of how successful these reform proposals would be in their purpose of distinguishing right between blameworthy and non-culpable Acts of the Apostless, if implemented.

As we have already seen from the illustrations discussed above, Norrie is rather right in his averments ; the demand of direct purpose is excessively focussed on the specific mental province of the histrion with the consequence that the charge of slaying would be precluded for anyone other than an wrongdoer who either straight intended to kill his victim, or at least intended to do that victim serious injury from which decease was a moderately foreseeable consequence. Likewise, the extension of this demand to include indirect purpose, whilst at least functioning to convey offenses of indiscriminate maliciousness under the range of ‘murder’ , besides serves to convey other such actions under this label, actions which should merely be considered manslaughter, in visible radiation of the lower grade of condemnable blameworthiness possessed by their culprits. In other words, it is non ever fair to compare foresight of a virtually certain consequence with purpose. Let us now look at the reforms to the philosophy of direct purpose, which have been proposed by the Law Commission in their Report on Homicide [ 11 ] , and buttocks to what extent these reform might really function to rectify the current insufficiencies:

In this Report, the Law Commission make two different reform proposals ; the first of these is to make a statutory definition of purpose which avoids the jobs of indirect purpose being construed excessively widely by a jury ; the 2nd is to codify the bing common jurisprudence philosophy of indirect purpose, but to modify it so that the current jobs of indirect purpose can be avoided. Both of these proposals are hence designed to rectify the job of indirect purpose being construed excessively widely, whilst at the same clip leting this philosophy to go on its prosecution of indiscriminate maliciousness as slaying where appropriate. The principle behind both of these alternate proposals is to rectify the differentiation which can, in exceeding instances, exist between purpose, in its natural signifier, and purpose implied by sensible foreseeability/ practical certainty. They reform proposals recognise that it is possible for an wrongdoer to hold non intended a peculiar result, even though he or she may hold realised that such an result was a virtually certain effect of their actions. This is normally known as the ‘Woolin [ 12 ] ’ job.

Under the first proposal, the Commission have province that ‘It is important that a statutory definition of purpose should non do unfairness, or absurdness, by holding certain behavior to be intended when the fortunes show it to be otherwise [ 13 ] ’ . Therefore, under this first proposal, the Commission propose to infix a provision into a statutory definition of purpose, i.e. ‘A individual is non to be deemed to hold intended any consequence, which it was his or her specific intent to avoid. [ 14 ] ’ This should non be seen as reinserting a motor appraisal into that of purpose, but instead to supply a agency by which a jury will non be forced to convict person of slaying, in an exceeding instance where that offender specifically did non mean to do decease even though he knew it would about surely consequence from his actions.

Under the 2nd proposal, the Commission suggest a codification of the current philosophy of purpose, modified to take history of those exceeding instances where it would be unjust to compare foresight of a virtually certain consequence with purpose, might be as follows. Such a preparation might read as follows:

“ ( 1 ) A individual is to be regarded as moving deliberately with regard to a consequence when he or she acts in order to convey it approximately.

( 2 ) In the rare instance where the simple way in clause ( 1 ) is non plenty, the jury should be directed that: they are non entitled to happen the necessary purpose with respect to a consequence unless they are certain that the consequence was a practical certainty ( excluding some unanticipated intercession ) as a consequence of the defendant’s actions and that the suspect appreciated that such was the instance.

( 3 ) In any instance where the defendant’s opportunity of success in his or her intent of doing some other consequence is relevant, the way in clause ( 2 ) may be expanded by the add-on of the undermentioned phrase at the terminal of the clause ( 2 ) way: or that it would be if he or she were to win in his or her intent of doing some other consequence, and that the suspect appreciated that such was the instance.[ 15 ]

This would hold the consequence of keeping the current jurisprudence in relation to practical certainty, which as Lord Steyn pointed out in Woolin, “has [ over a period of 12 old ages since Nedrick ] seemingly caused no practical troubles, [ 16 ] ’ whilst at the same clip, restricting the philosophy of indirect purpose so as to except those state of affairss where an wrongdoer might hold seen decease as being virtually certain, but where he specifically tried to avoid it. This proposal purports to make this by supplying the jury with more specific guidelines as to when they are entitled to deduce indirect purpose.

Both of these reform proposals are promoting ; it would look that the Law Commission is heading in the right way at last. The first proposal specifically precludes the Woolin job with the interpolation of a proviso which, although supposedly re-introducing a motor component to the philosophy of purpose, can really be used to guarantee that purpose is non implied where it would be unjust to make so. The 2nd is less specific, but purports to accomplish the same terminals by clear uping the necessary fortunes in which indirect purpose should be implied.

In decision, I would favor the first proposal for the undermentioned ground ; the 2nd proposal will merely somewhat modify the philosophy of indirect purpose, and will merely somewhat limit its range. The provision contained in the first proposal nevertheless, is, as yet, limitless in its range, and as such, can be used by a jury to greater consequence. This may hold the consequence of contrary unfairness, i.e. wrongdoers who should morally be guilty of slaying get awaying this label for the lesser strong belief of manslaughter, but I feel that it will so significantly diminish the opportunities of the contrary occurring, i.e. wrongdoers who should merely be found guilty of manslaughter being labeled as a liquidators, that such a hazard is justified ; after all, it is more of import to promote this latter phenomenon than it is to forestall the former from happening at all costs, particularly in visible radiation of the immense sentences which are imposed on those wrongdoers convicted for the offense of slaying.


Law Commission ‘s Consultation Paper Homicide ( No.177, 2005 )

Nathan Committee Report, Report of the House of Lords Select Committee on Murder and Life Imprisonment ( HL paper 78-1, 1989 ) .

A Ashworth, Principles of Criminal Law ( 4th ed 2003 )

A Norrie, “Subjectivism, Objectivism, and the Limits of Criminal Recklessness” ( 1992 ) 12 OJLS 45.

A P Simester, “Why Distinguish Intention from Foresight? ’” in A P Simester and A T H Smith, Harm and Culpability ( 1996 ) 71.

Williams, G. ( 1955 ) The definition of Crime Current Legal Problems 8, 107-30

Smith, A. H. ( 2004 ) ‘Criminal Law: The Future ‘ Criminal Law Review, Dec, 971-80


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