Criminal intent

Intention and desire

First,the law has correctly distinguished between intention and desire. You can desire things you have no intention of bringing about, as when I desire to go to the Caribbean but don’t currently have the means or time to go there.

It is also correct to say that we can infer intention from desire, eg, if you have made claims that you ‘want Joe Bloggs dead’ and you have dropped a boulder from a bridge onto a car, thereby killing Joe Bloggs.

However, the courts have gone further and said that you can intend to bring about a consequence you don’t desire to bring about. This is, we believe, mistaken.

Take mercy killing. You may regret that someone wants to die and pleads with you to end their life. It might be the last thing you ‘want’ to do. But if you choose to kill the person over leaving them to suffer, you do want that outcome more, out of the two possible outcomes. Your motive may be compassion, but you do want them to die to avoid more suffering.

Wanting an outcome can be consistent with regretting, or being sad, that it occurs. You can regret that it is the best of all the available options but, to the extent you judge it to be the best and act on that judgement, you want that outcome. But the courts have assumed otherwise. In countless cases on the issue, a standard formula in court judgments is that ‘you can intend an outcome that you do not desire’.

This is not true, and is one of the main reasons why a satisfactory account of intent has yet to be given. Acceptance of the claim you can intend but not desire an outcome is inconsistent with the definition of intent in terms of purpose, for a purpose is, by definition, something you want to bring about. So this mistake forces the court to regard the purpose definition as insufficient.

The confusion stems in part from an example given in R v Moloney, which said: “A man who, at London airport, boards a plane which he knows to be bound for Manchester, clearly intends to travel to Manchester, even though Manchester is the last place he wants to be and his motive for boarding the plane is simply to escape pursuit.” (Moloney).

Although in one sense this man has no particular desire to go to Manchester – his motive for jumping on the plane simply being to escape pursuit – he nevertheless wants to go there if he chooses to board that plane over others.

Only if he boarded the plane without thought for its destination at all, could we say he had no desire to go there at all – but if he boarded without thought for its destination, we can equally say he had no intention to go there, his intention simply being to escape.

In short, insisting you can intend an outcome without desiring it deprives the court of an important criterion for telling a jury what an intention is.

Intention and foresight

Failure to see the conceptual connection between intention and desire has led the courts into dense thickets, trying to find what an intention really is – hence the second problem, which is to identify it with foresight of virtually certain consequences. In an English case (Woollin), Lord Steyn said ‘a result foreseen as virtually certain is an intended result’. This is where, as noted above, there is a danger of incorrectly equating intention with what the accused had in his or her mind when acting. The accused might simply have been aware of the high probability of its occurring but had some other consequence in mind, as with the police officer case mentioned below.

Foresight of virtually certain consequences can be evidence from which one can infer intent, provided that there is other evidence that also leads to that conclusion (such as motive). It needs other evidence because foresight of virtually certain consequences does not equate to intent.