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Varieties of intention, criminal attempts and endangerment

Published online by Cambridge University Press:  02 January 2018

Jeremy Horder
Jeremy Horder*
Affiliation:
Worcester College, Oxford
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Extract

Intended conduct is not the only means by which people, for good or ill, make their presence felt in the world. Nonetheless, much judicial and academic learning exists on the meaning of intention in law. In spite of so much learning, however, our understanding of how intention affects the wrongfulness of conduct remains impoverished. The impression given by case law and commentary is that the important issues raised by the role of intention in the criminal law can largely be exhausted by exploration of the distinction between direct and oblique intention: between desired goals and side-effects foreseen as certain in acting. Nothing could be further from the truth. In particular, there is far more richness and complexity in the concept of direct intention itself than has been hitherto realised. In this article, I will focus on two more or less neglected species of direct intention: the intention to try to do wrong, and the intention to expose another to the risk of wrongdoing. An understanding of the moral significance of these kmds of intention enhances our understanding of the nature and scope of criminal attempts and possible offences of endangerment in English law.

Type
Research Article
Information
Legal Studies , Volume 14 , Issue 3 , November 1994 , pp. 335 - 344
Copyright
Copyright © Society of Legal Scholars 1994

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References

1. For early examination of some of the difficulties, see R v Whybrow (1951) 35 Cr App R 141 and JC Smith' Two Problems in Criminal Attempts' (1957) 70 Harv LR 422.

2. The competing arguments are lucidly reviewed by A Duff in his article ‘The Circumstances of an Attempt’ (1991) 50 Camb L J 100, see also the response to Duff by G Williams ‘Intents in the Alternative’ in the same volume, at 120.

3. See (pre 1981) R v Whybrow (1951) 35 Cr App R 141, and (post 1981) R v Millard & Vernon [1987] Crim L R 393.

4. Such a person is guilty of ‘endangerment’, but there is no such general crime known to English Law. See, by way of contrast, the Scottish case of Cawthorne [1986] JC 32. There have been, of course, many context-specific crimes of purely reckless conduct, like reckless driving.

5. Although the notoriously subjectivist Law Commission supported this view. See Attempt, and Impossibility in Relation to Attempt, Conspiracy and Incitement (1980) (Law Corn no 102. paras 2.14–2.15).

6. R v Khan [1990] 1 WLR 813.

7. Loc cit, n 2, above.

8. Loc cit, pp 112–113.

9. See eg Williams, loc cit, n 2, above; and for a rival test that has all the elegant simplicity of Duffs, see J Stannard ‘Making up for the Missing Element: A Sideways Look at Attempts’ (1987) 7 Legal Studies 194, criticised by Duff, loc cit, n 2 above, pp 111–112. In a very recent Attorney-General's Reference, the Court of Appeal has analysed the mens rea in attempts by employing arguments similar to those of both Duff and Stannard: see Attorney-General's Reference (no 3 of 1992) [1994] 1 WLR 409 at 417–419. See also JC Smith loc cit, n 1 above and R v Pearman (1985) 80 Cr App R 259.

10. He has also defended the view that, however serious they are, attempts are not quite as serious as their completed counterparts, see his ‘Auctions, Lotteries and the Punishment of Attempts’ (1990) 9 Law and Philosophy 1. I shall not be concerned with this view here.

11. Intention, Agency and Criminal Liability (Oxford 1990) pp 202–203.

12. Ibid, pp 111–115.

13. See n 9 above. But see n 14 below for a qualification of this criticism where Duff is concerned.

14. The distinction between the intention to try and the intention to succeed is discussed by J Hornsby ‘On What's Intentionally Done’, in Shute, Gardner and Horder Action and Value in the Criminal Law (Oxford 1993) p 60. Her point is to distinguish reasons to try from reasons to succeed. In fact Duff notices the distinction between the intention to try and the intention to succeed: op cit, n 11 above, p 56, but he does not theorise the connection between them in his writing on attempts.

15. This notion should be familiar enough. A salesman who seeks to prove that the plates he sells are unbreakable may have little option but to try to break one to prove his point to any potential buyer. As with the example given in the text, however, the last thing he will intend, in so attempting, is actually to break the object.

16. It could conceivably be manslaughter, but that would depend, inter alia, on whether firing at someone from the range in question could be described as reckless.

17. Op cit, n 11 above, p 202.

18. Although D may be guilty of a specific endangerment offence contrary to s 22A of the Road Traffic Act 1988: see n 32, below.

19. For further discussion of this example, see W Wilson ‘A Plea for Rationality in the Law of Murder’ (1990) 10 LS 307, pp 317–321; G Williams ‘Rationality in Murder-A Reply’ (1991) 11 LS 204, 296; G R Sullivan ‘Intent, Subjective Recklessness and Culpability’ (1992) 12 OJLS 380, 387–8.

20. See Williams, loc cit n 19, above. If the gun had gone off, killing V, because the chamber next to the firing pin was in fact loaded, D would be guilty of reckless manslaughter.

21. See Sullivan, loc cit n 19, above.

22. For further discussion of the intention to expose someone to a risk, see Duff, op cit, n 11 above, pp 173–179 and W Wilson, loc cit n 19 above. Wilson accepts, at p 318, that D intends to subject V to a risk of death in this example, but claims nonetheless that D intends to kill V as well. It is this latter claim that is rejected here.

23. For discussion of outcome luck in a legal context, see A Ashworth ‘Taking the Consequences’, in Shute, Gardner and Horder, op cit, n 14 above, 107–124.

24. A Duff, op cit, n 11 above, pp 56–57. For similar criticism to that which follows, see A P Simester ‘Paradigm Intention’ (1992) 11 Law and Philosophy 235. pp 247–249.

25. Op cit, n 11 above, pp 56–57.

26. Seen 15 above.

27. Op cit, n 24, above

28. Op cit. n 23, above.

29. See further, AP Simester. op cit, n 24, above.

30. See n 18 above.

31. The need to include the element of unlawfulness is obviously to exclude from the scope of the offence cases such as that of the surgeon who, as acceptable surgical practice dictates, deliberately exposes a patient to a significant risk by undertaking a potentially life-saving operation. The surgeon's conduct in this example is lawful.

32. As substituted by the Road Traffic Act 1991, s 6.

33. See Hancock & Shankland [1986] AC 455.

34. See DPP v Hyam [1975] AC 55.

35. For further discussion of the relationship between fault and harm in criminalisation, see J C Smith ‘The Element of Chance in Criminal Liability’ [1971] 1 Crim L R 63 at 69–74.