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UNDERSTANDING ULTERIOR MENS REA: FUTURE CONDUCT INTENTION IS CONDITIONAL INTENTION

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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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This list contains references from the content that can be linked to their source. For a full set of references and notes please see the PDF or HTML where available.

J. Horder , “Crimes of Ulterior Intent” in A.P. Simester and A.T.H. Smith (eds.), Harm and Culpability (Oxford 1996), 153

G. Yaffe , Attempts (Oxford 2010)

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

G. Yaffe , “Conditional Intent and Mens Rea” (2004) L.T. 273

D. Davidson , Essays on Actions and Events (Oxford 2001), 99, 102

L. Alexander and K. Kessler , “Mens Rea and Inchoate Crimes” [1997] Journal of Criminal Law & Criminology 1142

L. Alexander and K. Ferzan , Crime and Culpability (Cambridge 2009), 203

M.S. Moore , “Intention as a Marker of Moral Culpability and Legal Punishment” in S. Green and A. Duff (eds.), Philosophical Foundations of the Criminal Law (Oxford 2011), 179, 200

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

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The Cambridge Law Journal
  • ISSN: 0008-1973
  • EISSN: 1469-2139
  • URL: /core/journals/cambridge-law-journal
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