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UNDERSTANDING ULTERIOR MENS REA: FUTURE CONDUCT INTENTION IS CONDITIONAL INTENTION

Abstract
Abstract

Where criminal offences such as attempt and conspiracy require a defendant (D) to intend future conduct, D's intention will always be conditional. D's intention may be explicitly conditional (e.g. D intends to rob the shop, but only if unable to pay her rent), or implicitly conditional (e.g. D intends to rob the shop, but if asked, would not do so if she found it surrounded by police). Rather than interpreting and defining conditional intention as synonymous with all future conduct intention, however, courts and commentators have too often approached it as unique, separate and problematic. This has led to problems of inconsistency in application, and simple incoherence. This article sets out and defends a model of conditional intention as future conduct intention, and as the key to understanding and applying ulterior mens rea.

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Address for Correspondence: School of Law, University of Sussex, Falmer, Brighton, BN1 9RH, UK. Email: J.J.Child@sussex.ac.uk.
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Senior Lecturer, in Law University of Sussex.

I would like to thank Antony Duff, Jeremy Horder, Heather Keating, Amir Paz-Fuchs, Scarlett Gaebler and Andrew Sanders for useful comments on drafts of this article, and the peer reviewers at CLJ. Thanks also to the Max Planck Institute for Foreign and International Criminal Law where much of the work was completed, and associated funding from the Fritz Thyssen Foundation. Particular thanks finally to Professor Bob Sullivan for early work on the article. The usual disclaimer applies.

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1 See Horder J., “Crimes of Ulterior Intent” in Simester A.P. and Smith A.T.H. (eds.), Harm and Culpability (Oxford 1996), 153; Child J.J., “The Structure, Coherence and Limits of Inchoate Liability: The New Ulterior Element” (2014) L.S. 537. R.A. Duff refers to this as further intentions” in Intention, Agency and Criminal Liability (Oxford 1990), 38.

2 Criminal Damage Act 1971, s. 1(2).

3 Criminal Law Act 1977, s. 1.

4 Hyam [1975] A.C. 55.

5 Woollin [1999] A.C. 82.

6 On the definition of present conduct intention, see generally Duff, Intention, Agency and Criminal Liability; Duff, Intention Revisited” in Baker D.J. and Horder J. (eds.), The Sanctity of Life and the Criminal Law (Cambridge 2013), 148; Yaffe G., Attempts (Oxford 2010), Part 2.

7 Useful cases include, among others, O'Hadhmaill [1996] Crim.L.R. 509, Saik [2006] UKHL 18, Jogee [2016] UKSC 7.

8 For useful summary and analysis of early cases, see K. Campbell, “Conditional Intention” [1982] L.S. 77, at 78–82; and Koffman L., “Conditional Intention to Steal” [1980] Crim.L.R. 463.

9 (1978) 67 Cr. App. R. 131.

10 This decision was in line with the previous case of Easom [1975] A.C. 476.

11 Williams G., “The Three Rogues Charter” [1980] Crim.L.R. 263.

12 AG's Reference (Nos 1 and 2 of 1979) [1980] Q.B. 180.

13 Campbell, “Conditional Intention”, p. 82.

14 Ormerod D. and Laird K., Smith and Hogan's Criminal Law, 14th ed. (London 2015), 468.

15 The application of conditional intention in these cases has also been aided by the Criminal Attempts Act 1981, and the criminalisation of impossible attempts. This is because, even if the bag was empty, D's intention to steal its potential contents would be sufficient for liability.

16 Criminal Law Act 1977, s. 1. Conspiracy is a particularly useful offence because, as it requires an agreement between parties that will “necessarily amount to or involve the commission of any offence”, and both parties must intend that this offence should be completed, the issue of conditionality can arise both within actus reus (i.e. parties agree to offend under certain conditions) and mens rea (i.e. parties intend to offend under certain conditions). Additionally, as conspiracy does not require temporal proximity to the agreed future offence, the potential for facts involving conditional agreements and intentions is also increased.

17 [1982] Crim.L.R. 819.

18 See e.g. O'Hadhmaill [1996] Crim.L.R. 509; and Saik [2006] UKHL 18.

19 Indeed, this was clearly the intention of the Supreme Court in Jogee [2016] UKSC 7, at [92]–[94].

20 Saik [2006] UKHL 18.

21 Contrary to the Criminal Justice Act 1998, s. 93C(2); now an offence under the Proceeds of Crime Act 2002, s. 340.

22 Saik [2006] UKHL 18, at [97]–[102].

23 Ibid., at para. [5].

24 Ormerod D., “Making Sense of Mens Rea in Statutory Conspiracies” [2006] C.L.P. 185. Ormerod highlights potential support for a similar approach in Singh [2003] EWCA Crim 3712.

25 Jogee [2016] UKSC 7. D and P went to V's house and began a violent confrontation. P took a knife from the kitchen and killed V. D intended P to confront V with violence, and foresaw the possibility of serious harm being caused, but did not intend serious harm to be caused. The Supreme Court held that foresight of P's offence was no longer sufficient for complicity liability, and that intention should be required.

26 Ibid., at paras. [92]–[95].

27 Ormerod D. and Laird K., “Not the End of a Legal Saga but the Start of a New One?” [2016] Crim.L.R. 539; Horder J., Ashworth's Principles of Criminal Law, 8th ed. (Oxford 2016), 453–56. See also Ormerod D. and Wilson W., “Simply Harsh to Fairly Simple: Joint Enterprise Reform” [2015] Crim.L.R. 3.

28 Jogee [2016] UKSC 7, at [93].

29 For related problems in America: see US MPC §2.02(6); Holloway v United States 119 S.Ct. 966 (1998); and Yaffe G., “Conditional Intent and Mens Rea” (2004) L.T. 273; for Australia: see Christopher Garven v Constable David Quilty [1998] ACTSC 137; Sharp v McCormick [1986] V.R. 869; for Germany: see Bohlander M., Principles of German Criminal Law (Oxford 2009), 6566 ; Blomsma J. and Roef D., “Forms and Aspects of Mens Rea” in Keiler J. and Roef D. (eds.), Comparative Concepts of Criminal Law (Cambridge 2016), 103, 108–09.

30 Leading textbooks on criminal law, for example, tend to discuss the term “conditional intention” as it relates to specific offences such as attempted theft and conspiracy, and not in more general mens rea chapters.

31 Smith J.C., “Intention in Criminal Law” [1974] C.L.P. 93, at 115–16; Davidson D., Essays on Actions and Events (Oxford 2001), 99, 102; Alexander L. and Kessler K., “Mens Rea and Inchoate Crimes” [1997] Journal of Criminal Law & Criminology 1142.

32 See Woollin [1999] A.C. 82; Hyam [1975] A.C. 55; Duff, Intention, Agency and Criminal Liability; Yaffe, Attempts, Part 2.

33 D may choose to act even though a certain condition is not yet resolved, for example, choosing to kill V before being sure of her identity where such knowledge may have motivated her conduct. However, all this shows is that D's intention to kill V was not conditional on knowing V's identity.

34 Kugler I., “Conditional Oblique Intention” [2004] Crim.L.R. 284, 284.

35 I.e. result Y is obliquely intended on condition of result X.

36 For discussion, see Law Commission, Legislating the Criminal Code: Offences Against the Person and General Principles (Law Com. No. 218, 1993), 10.

37 Jogee [2016] UKSC 7.

38 Ibid., at paras. [92]–[95].

39 There is a separate debate here about whether it is ever possible to intend the voluntary actions of another, but this does not impact the rejection of conditional intention. Rather, this debate questions whether D's knowledge of P autonomous choices at t2 break any intentionally causal chain, meaning that D may desire P's future acts but not intend them. See Duff, Intention, Agency and Criminal Liability, pp. 63–66. See also the rather vague comment in Simester A.P., Spencer J.R., Stark F., Sullivan G.R. and Virgo G.J., Simester and Sullivan's Criminal Law, 6th ed. (London 2016), 324, with regard to conspiracy, that such a party's intent is “constituted by the knowledge that his co-conspirator intend[s]” to complete the offence.

40 Davidson, Essays on Actions and Events, p. 102; Duff, Intention, Agency and Criminal Liability, p. 71.

41 This conclusion (though not necessarily the reasoning) is reflected in Alexander L. and Ferzan K., Crime and Culpability (Cambridge 2009), 203; Saik [2006] UKHL 18, [5]; Koffman, “Conditional Intention to Steal”, p. 465; Smith, “Intention in Criminal Law”, p. 115.

42 Implicit conditionality can seem unintuitive, and has attracted criticism. See e.g. J.P.W. Cartwright, “Conditional Intention” (1990) Philosophical Studies 233, at 237–41; Campbell, “Conditional Intention”, pp. 90–91. However, such criticism does not undermine the essential logic of the proposition. I return to this in the next section.

43 Cartwright, “Conditional Intention”, p. 235.

44 Ibid., at p. 244.

45 Davidson puts this point particularly well, remarking that “The intention is not conditional in form; rather, the existence of the intention is conditioned by my beliefs”: Essays on Actions and Events, p. 100. See also Moore M., Placing Blame (Oxford 1997), 407; Moore M.S., “Intention as a Marker of Moral Culpability and Legal Punishment” in Green S. and Duff A. (eds.), Philosophical Foundations of the Criminal Law (Oxford 2011), 179, 200.

46 Gardner J. and Jung H., “Making Sense of Mens Rea: Antony Duff's Account” (1991) 11 O.J.L.S. 560.

47 Ibid., at pp. 567–68.

48 Ibid., at p. 568.

49 It is interesting to note that Duff's partial endorsement of the Gardner and Jung approach avoids this problem by focusing on a completed attempt example (D attempting to steal from an empty pocket) where D's current actions are directly motivated by her intention. However, this example only engages with a small proportion of cases involving ulterior mens rea of this kind (i.e. completed attempts). A. Duff, Criminal Attempts (Oxford 1996), 214.

50 The only exception will be complete attempts, where D completes the conduct element of the principal offence but (for whatever reason) fails to cause the result, e.g. where D shoots at V, but misses.

51 Cartwright, “Conditional Intention”. Similar approaches are advanced elsewhere by Campbell, “Conditional Intention”, pp. 89–90; and Meiland J.W., The Nature of Intention (London 1970), 20.

52 Klass G., “Conditional Intent to Perform” (2009) L.T. 107, at 113.

53 One option would be to focus on whether D desired the condition to arise or not, only finding valid intention where such desire is present. See the dissenting judgment of Scalia J., in Holloway 119 S.Ct. 966 (1998), 973. Duff also offers some support for this approach in Criminal Attempts, p. 214.

54 Yaffe, “Conditional Intent and Mens Rea”.

55 Moore, Placing Blame, p. 407. This derives, in large part, from Bratman M., Intention, Plans and Practical Reason (Cambridge, MA 1987), 15. See also Yaffe, Attempts, pp. 82–102.

56 In most cases D knows that she is able to revisit a decision of this kind, and so some tentative deliberation about alternatives may be acceptable. However, serious consideration of alternative options suggests that a decision has not been made, and D therefore lacks intention.

57 Yaffe, “Conditional Intent and Mens Rea”, Part 3.

58 We are assuming, for the sake of this discussion, that it is possible to intend unconditionally. This was discussed across factors 2 and 3.

59 Either would make us doubt the validity of D's intention.

60 Yaffe, “Conditional Intent and Mens Rea”, p. 298.

61 Ibid., at pp. 300–03.

62 Ibid., at p. 304.

63 Holloway, 119 S.Ct. 966 (1998).

64 Yaffe, “Conditional Intent and Mens Rea”, p. 306.

65 E.g. Klass, “Conditional Intent to Perform”.

66 Law Commission, Conspiracy and Attempt (Consultation 183, 2007), §5.5.

67 Alexander and Kessler, “Mens Rea and Inchoate Crimes”, pp. 1144–45; Alexander and Ferzan, Crime and Culpability, pp. 204–05. For a useful discussion of the conceptual coherence of intention as to unlikely and/or undesired outcomes, see Horder J., “Varieties of Intention, Criminal Attempts and Endangerment” [1994] L.S. 335.

68 For useful discussion, see Alexander and Ferzan, Crime and Culpability, pp. 203–06; Alexander and Kessler, “Mens Rea and Inchoate Crimes”, pp. 1143–45; Law Commission, Conspiracy and Attempts, §2.108.

69 After all, were D to be arrested after winning the lottery twice and then killing V, we would not look back to the unlikely series of events as any form of mitigation. Where the conditions do not come about, of course, and D is potentially liable for an inchoate offence only, the use of prosecutorial discretion may be important: Campbell, “Conditional Intention”, p. 96.

70 D's mens rea must be settled and genuine to be valid in law.

71 Parry refers to this as “suspended intention”. J. Parry, “Conditional Intention (1) A Dissent” [1981] Crim.L.R. 6. See also brief discussion in Williams G., Textbook of Criminal Law (London 1978), 652.

72 Koffman L., “(2) A reply” [1981] Crim.L.R. 14.

73 Law Commission, Conspiracy and Attempt (Consultation 183, 2007), §§ 5.8, 5.9–5.13, (Law Com. No. 318, 2009), §§ 2.111–2.112.

74 E.g. D will not be liable for murder where she plans to kill V and later causes death by accident; or accidentally kills V and then subsequently revels in the mistake. Rather, the conduct that causes V's death must be accompanied with a present intention to kill or cause serious harm by those acts.

75 Conspiracy also requires D2 (the party agreeing with D) to share D's intentions.

76 See discussion at factor 2 above.

77 This should be compared to Kugler's view of conditional oblique intention criticised above. Kugler, “Conditional Oblique Intention”. See also discussion in Smith, “Intention in Criminal Law”, pp. 117, 119.

78 This should be distinguished from conditional intention, and yet it is occasionally presented as equivalent. See e.g. Wilson and Ormerod, “Simply Harsh to Fairly Simple”, p. 9, who discuss a conditional belief in the context of complicity.

79 Our assumption here is that D has agreed with D2 that she (D) will commit the principal offence.

80 Examples of this line of reasoning, albeit applied to different offences, can be seen in G. Williams, “Intents in the Alternative” [1991] C.L.J. 120; Baroness Hale's dissenting judgment in Saik [2006] UKHL 18; Ormerod, “Making Sense of Mens Rea”. For a similar line argument in German law, applied to reckless HIV transmission cases, see Bohlander, Principles of German Criminal Law, p. 66.

81 The mens rea of murder requires D to intend or know that what she is killing is a person.

82 A point acknowledged in Smith, “Intention in Criminal Law”, pp. 113–14.

83 Williams, “Intents in the Alternative”, p. 124. Williams's example is commonly cited and agreed with across the literature.

84 E.g. ibid.

85 See e.g. ibid.; Ormerod, “Making Sense of Mens Rea”, pp. 224–26; Baroness Hale's dissenting judgment in Saik [2006] UKHL 18, 56–57; Ormerod and Laird, Smith and Hogan's Criminal Law, 14th ed., pp. 498–99.

86 Similar criticisms are made in Duff, Criminal Attempts, pp. 15–16; Duff R.A., “Recklessness in Attempts (Again)” (1995) 15 O.J.L.S. 309, at 312–13; Sullivan G.R., “Intent, Subjective Recklessness and Culpability” (1992) 12 O.J.L.S. 380, at 385; Smith, “Intention in Criminal Law”, pp. 113–14.

87 Williams G., The Mental Element in Crime (Jerusalem 1965), 52; Williams G., “The Problem of Reckless Attempts” [1983] Crim.L.R. 365, at 373.

88 The Law Commission has criticised approaches to conditional intention that require speculation of this kind. See Law Commission, Conspiracy and Attempts (No. 318, 2009), §§ 2.99–2.101 and Appendix B.

89 Sullivan, “Intent, Subjective Recklessness and Culpability”. Sullivan's approach goes considerably further than that which I would recommend (e.g. finding knowledge where D could have discovered a fact relevant to the offence), but the potential use of wilful blindness is an interesting prospect. Cf. Horder, “Varieties of Intention”, pp. 341–43.

90 Certain academics have argued, in effect, for the abolition of such mens rea. See e.g. Alexander and Ferzan, Crime and Culpability, p. 206; Alexander and Kessler, “Mens Rea and Inchoate Crimes”.

* Senior Lecturer, in Law University of Sussex.

I would like to thank Antony Duff, Jeremy Horder, Heather Keating, Amir Paz-Fuchs, Scarlett Gaebler and Andrew Sanders for useful comments on drafts of this article, and the peer reviewers at CLJ. Thanks also to the Max Planck Institute for Foreign and International Criminal Law where much of the work was completed, and associated funding from the Fritz Thyssen Foundation. Particular thanks finally to Professor Bob Sullivan for early work on the article. The usual disclaimer applies.

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