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The Law Commission
You are here: BAILII >> Databases >> The Law Commission >> A New Homicide Act For England And Wales? (Consultation Paper) [2005] EWLC 177(4) (20 December 2005)
URL: http://www.bailii.org/ew/other/EWLC/2005/177(4).html
Cite as: [2005] EWLC 177(4)
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PART 4
INTENTION
QUESTIONS AND PROVISIONAL PROPOSALS
4.2 We see advantages and disadvantages with each model and invite views on the merits of each.
The First Model
4.3 The First Model, based on the definition contained in the Draft Criminal Code,[1] would provide a definition of "intentionally" for the offence of murder in the following terms:
Subject to the proviso set out below:
a person acts "intentionally" with respect to a result when he or she acts either:
(1) in order to bring it about, or
(2) knowing that it will be virtually certain to occur; or
(3) knowing that it would be virtually certain to occur if he or she were to succeed in his or her purpose of causing some other result.
Proviso: a person is not to be deemed to have intended any result which it was his or her specific purpose to avoid.
[paragraphs 4.13-4.63]
The Second Model
(1) A person is to be regarded as acting intentionally with respect to a result when he or she acts in order to bring it about.(2) In the rare case where the simple direction in clause (1) is not enough, the jury should be directed that:
they are not entitled to find the necessary intention with regard to a result unless they are sure that the result was a virtual certainty (barring some unforeseen intervention) as a result of the defendant's actions and that the defendant appreciated that such was the case.
(3) In any case where the defendant's chance of success in his or her purpose of causing some other result is relevant, the direction in clause (2) may be expanded by the addition of the following phrase at the end of the clause (2) direction:
or that it would be if he or she were to succeed in his or her purpose of causing some other result, and that the defendant appreciated that such was the case.
[paragraphs 4.64-4.69]
STRUCTURE OF THIS PART
INTRODUCTION
4.7 This cognitive approach, which focuses on the defendant's knowledge rather than his or her desires may, however, be over inclusive. It includes those who foresee virtually certain consequences but who act for what may be socially "good" or "excusable" purposes. For example, it includes a person who acts under duress of circumstance.[2]
4.9 One element of this approach is that the jury is directed not to confuse motive, that is, the aim which lies behind the achievement of the "intended" result, with the intention that such a result will occur. This approach gives rise to an apparent conundrum. If the motive for action giving rise to that foreseen as virtually certain is to be ignored, then in what circumstances would it be logical, let alone permissible, for a jury to conclude as a matter of fact that a virtually certain result was not intended? In particular, would a person "intend" an outcome that was virtually certain to occur even though its avoidance was the actual aim of that person's conduct?[3]
4.10 The approach taken in German criminal law to the meaning of "intention" is to have three types of intent: intention in the narrow sense (Intent First Degree); dolus directus (Intent Second Degree) and dolus eventualis (Intent Third Degree). Intent First Degree is the "purpose bound will". The result is what matters, though the final goal is irrelevant.[4] In cases of Intent Second Degree, it is "knowledge" that dominates. The defendant knows that a certain incidental consequence will occur. It is irrelevant whether that consequence is desired or not.[5] Intent Third Degree requires that the defendant foresees the result as possible and accepts the fact that his or her conduct could bring about the result, albeit an undesired result.[6]
4.12 Finally, although it is not a model that we propose, we describe the "Finnis" approach to the meaning of intention.[7] This confines the word "intention" to its ordinary meaning of aim or purpose.
THE FIRST MODEL: PREVIOUS LAW COMMISSION RECOMMENDATIONS FOR A DEFINITION OF "INTENTIONALLY"
4.13 A definition of "intentionally" is contained in clause 18(b) of the Draft Criminal Code (1989).[8] A revised definition of "intentionally" is contained in clause 1 of the Draft Criminal Law Bill (1993).[9] The approach of each of these drafts is to establish a rule of law which is cognitive in nature. It defines intention as a matter of law. Avoidance of criminal liability, for those who otherwise would be guilty – having committed the external elements of the crime with the necessary fault – then becomes a matter of the development of specific defences. In this respect, these definitions go beyond the common law.
Clause 18(b) of the Draft Criminal Code (1989)
4.14 Clause 18(b) provides that a person acts:
"intentionally" with respect to—
(i) a circumstance when he hopes or knows that it exists or will exist;(ii) a result when he acts either in order to bring it about or being aware that it will occur in the ordinary course of events.
Shortcomings identified in relation to clause 18(b)(ii) of the Draft Code
4.15 The late Professor Sir J C Smith discussed three shortcomings of clause 18(b), in so far as it relates to intentional results, in "A Note on 'Intention'".[10] These were considered by the Law Commission in our publications on Offences Against the Person and General Principles.[11]
DANGER OF BLURRING THE DISTINCTION BETWEEN "INTENTION" AND "RECKLESSNESS"
4.16 First is the concern that the distinction between "intention" and "recklessness" may be blurred by the qualification to the second part of the definition, namely that the defendant is aware that a result will occur "in the ordinary course of events". This concern is met in the Draft Criminal Law Bill by a change in the definition, so that it requires the actor to "know", rather than be "aware" that the further result would occur.[12]
THE REQUIREMENT THAT AN EVENT WILL OCCUR IN THE ORDINARY COURSE OF EVENTS
4.18 For example, a man who places a bomb on a plane may know that the type of bomb used has a 50% failure rate. He could not be said to be aware that death of the crew will happen "in the ordinary course of events", as there is a 50% chance that it will not happen. Yet everyone seems to agree that the bomber should be taken to have intended to kill the crew even where his main purpose may be to destroy the cargo in order to make an insurance claim.[13]
4.19 The revised provision in the Draft Criminal Law Bill aims to address this difficulty by the addition of the phrase "if he were to succeed in his purpose of causing some other result". We will consider how effective that phrase might be at paragraphs 4.29-4.37. [14]
A RESULT WHICH IT IS THE ACTOR'S PURPOSE TO AVOID
4.20 The third shortcoming Professor Smith identified is that:
The definition leaves open the possibility that a person may be held to have intended a result that it was his purpose to avoid. He knows that it will happen in the ordinary course of events — it is a virtual certainty but not an absolute certainty and his whole purpose is to avoid it. It does not make good sense to say that he intended that result.[15] This situation is unlikely to arise in other than exceptional and desperate circumstances…that is not a good reason for not providing for it.[16]
4.21 The example given by Lord Goff in the House of Lords debate on the Nathan Committee Report[17] illustrates this shortcoming:
A house is on fire. A father is trapped in the attic floor with his two little girls. He comes to the conclusion that unless they jump they will all be burned alive. But he also realises that if they jump they are all likely[18]8 to suffer serious personal harm. The children are too frightened to jump and so in an attempt to save their lives he throws one out of the window to the crowd waiting below and jumps with the other one in his arms. All are seriously injured, and the little girl he threw out of the window dies of her injuries.[19]
Doubts about the standard formulation
4.23 In "Criminal Liability in a Medical Context: The Treatment of Good Intentions,"[20] Professor Andrew Ashworth cites cases such as Gillick,[21] Adams,[22] Steane,[23] and dicta in Hyam[24] as raising the question "whether the standard formulation[25] merely describes a general approach, or should be stated subject to exceptions, or is simply wrong".[26] The argument deployed is this. The conduct of the defendants in Adams and Steane, of the doctors who would be administering treatment in Gillick,[27] and of the protagonist in the example in Hyam, appears to fall within the meaning of "intentional" according to the "standard formulation", yet none was regarded as committing the offence in issue. Either the formulation cannot be right, as accurately capturing the existing law; or it is incompletely stated, as it must be subject to specific defences that prevent the commission of the offence even though the defendant has the requisite mens rea.
Our views about the shortcomings and doubts
4.24 We agree that each of the three factors identified by Professor Smith in his "Note on Intention"[28] should be addressed. In the light of criticism, considered below, of the way in which clause 1 of the Draft Criminal Law Bill sought to address them, we believe that they may be better addressed differently.
4.25 The cases to which Professor Ashworth refers highlight the need for the issues raised by the doctrine of double effect and duress of circumstances to be dealt with adequately either by the formulation of intention or by specific defences.[29] 9 The doctrine of double effect is considered towards the end of this paper, beginning at paragraph 4.72.
Clause 1(a) of the Draft Criminal Law Bill
"intentionally" with respect to a result when—
(i) it is his purpose to cause it, or(ii) although it is not his purpose to cause it, he knows that it would occur in the ordinary course of events, if he were to succeed in his purpose of causing some other result….
4.27 There are differences between this provision and clause 18(b)(ii) of the Draft Code. As is explained in the Offences against the Person and General Principles Consultation Paper[30] and the subsequent Report,[31] the changes aim to address specific shortcomings identified in respect of the earlier draft. The blurring of the distinction between intention and recklessness is met by use of the word "knows" that it would occur, in place of "aware" that it will occur. The phrase "if he were to succeed in his purpose of causing some other result" aims to meet the other two concerns, that of the bomb that may not go off and that of the result which it is the actor's purpose to avoid.
Shortcomings identified in respect of clause 1(a) of the draft Criminal Law Bill
DOES THE PHRASE "IF HE WERE TO SUCCEED IN HIS PURPOSE OF CAUSING SOME OTHER RESULT" MAKE THE DEFINITION OF "INTENTIONALLY" TOO NARROW?
4.29 The late Professor Sir J C Smith pointed out that the facts of Woollin[32] showed that the definition in clause 1 of the Draft Criminal Law Bill (which concerned only offences of non-fatal violence) may be too narrow.[33] In that case, the Crown did not contend that it was the defendant's purpose to kill or cause serious injury to his three-month-old son when he threw him onto a hard surface. As Professor Smith notes, the defendant "clearly…had no other purpose – except to vent his anger, which is not a purpose to cause a result". Professor Smith continued: "If the child had not died, there would be no case on a charge under clause 1(1). That might be regarded as unacceptable."[34] We are addressing the meaning of intention for the purpose of murder. The definition in clause 1(a) may similarly be regarded as too narrow for that offence.
4.30 A further revision suggested by Professor Smith was:
He knows that it will occur in the ordinary course of events, or that it would do so if he were to succeed in his purpose of causing some other result.[35]
[A]lthough it is not his purpose to cause that result, he knows that it would occur in the ordinary course of events either if he were to succeed in his purpose of causing some other event, or if he were to behave as he purposes.[36]
IS THE WORD "PURPOSE" UNSUITABLE FOR A DEFINITION OF AN INTENTIONAL RESULT?
4.32 It has been argued that the word "purpose" is unsuitable in this definition because its construction is uncertain.[37] The argument is that a purpose is a reason for doing something (for example, the purpose of stealing from a bank might be to buy medicine) in contrast to an intention, which accompanies the action,[38] "we may do things with an intention but for a purpose"[39] (emphasis added). We deal with this criticism below.[40]
Our views about the shortcomings with clause 1(a) of the Criminal Law Bill
SCOPE OF THE DEFINITION
4.33 We accept the criticism that clause 1(a) might be too narrow because a defendant who has no other purpose, such as the defendant in Woollin, may fail to be included within it. However, we do not believe that the revision suggested by Professor Smith would adequately solve this problem. The difficulty with this revision is that it would mean reverting to a definition that is capable of including as "intentional" a result that it is the actor's specific purpose to avoid. We have already noted that in such a case, "it does not make good sense to say that he intended that result."[41] Further, although "[t]his situation is unlikely to arise in other than exceptional and desperate circumstances…that is not a good reason for not providing for it."[42]
4.35 The alternative version of the second limb suggested by Simister and Sullivan also seeks to address this problem. The language "if he were to behave as he purposes" may, however, be difficult for jurors to apply. Nor is it not entirely clear how that definition would work in respect of the example of the father in the burning building.[43]
"PURPOSE"
4.36 The concerns voiced about "purpose"[44] deal with a confusion (which we accept afflicts the definition in clause 1(a)) between the purpose with which one may act in the sense of an ulterior motive, and, the purpose with which one acts in bringing about an immediate result. We are persuaded that the use of the word "purpose" could thus be problematic.
Our views on the definition of "intentionally"
4.38 At common law intention is regarded as an ordinary word, the meaning of which is a matter for juries and upon which, in the majority of cases, there is no need to elaborate. It has not been defined. In those cases in which a defendant did not desire the result in issue, guidance is given to the jury relating to the evidence from which intention may be inferred. This is best exemplified in Nedrick,[45] which was applied with a degree of modification in Woollin[46] That this is the effect of Woollin has been confirmed in the recent decision of the Court of Appeal in Matthews and Alleyne.[47]
4.39 We agree with the views expressed in our report Offences Against the Person and General Principles (1993)[48] and the commentary to the Draft Code, that "it is in the interest of clarity and the consistent application of the criminal law to define intention".[49] We have looked further at the definition in clause 18 of the Draft Criminal Code to see whether it can be improved so as to avoid both the pitfalls identified with the original version, and the "Woollin" problem found with clause 1(a) of the Draft Criminal Law Bill.
4.40 Our proposed "First Model" embodies a definition of intention based on that found in clause 18(b)(ii) of the Draft Criminal Code (which provides a definition of "intentionally" with respect to a result). We have seen that clause 18(b)(i) of the Draft Criminal Code defines "intentionally" with respect to a circumstance. The offence of murder, as currently defined at common law, involves no issues about acting "intentionally" with respect to a "circumstance". Where the defendant is charged with murder, the requirement that the defendant acts "unlawfully" (a circumstance) is separate from the requirement that the defendant intends to kill or to cause grievous bodily harm.[50] In our view, in the context of murder, any definition of "intentionally" need only deal with the meaning of acting intentionally in respect of a result.
A new definition based on Clause 18(b)(ii) – "intentionally as to a result"
4.41 The commentary to the Draft Code explains that "[t]he practical effect [of Nedrick] seems to be to leave the jury to characterise the defendant's foresight of the virtual certainty of result as 'intention', or not, as they think right in all the circumstances of the case".[51] In the interests of clarity, and of the consistent application of the law, the definition in clause 18(b)(ii) was recommended in preference to the common law approach.
[W]e do not regard Woollin as yet reaching or laying down a substantive rule of law. On the contrary, it is clear from the discussion in Woollin as a whole that Nedrick was derived from the existing law, at that time ending in Moloney and Hancock, and that the critical direction in Nedrick was approved, subject to the change of one word.
4.43 It may often make sense to permit a jury to conclude that the defendant intended a result that he or she knew would be virtually certain to occur, even if it was not the defendant's immediate purpose. The case of the defendant who places a bomb on a plane for the purpose of making an insurance claim in respect of property demonstrates this. Where such a defendant foresees as virtually certain the death or serious injury of those who are on the plane when it explodes, the defendant also intended to kill those people. Equally, it may also make sense to permit a jury to acquit a defendant in certain limited circumstances where, though "intending" the result in this oblique way, the defendant acted in circumstances of duress or for a benign motive: for example the father who threw the child from the burning attic.[52]
Is it just to equate foresight of a virtually certain result with intention?
[J]ustice requires the inclusion of the case where the defendant knows that his act will cause the relevant result, "in the ordinary course of events"…. It is possible that, under the Code, juries will, in a few cases, find intention to be proved where, under existing law, they might not have done so.[53]
4.47 Lord Goff's example given earlier in this paper,[54] about the father in the attic of a burning building, shows the potential for injustice arising from the Draft Code definition. The death of the daughter thrown from the attic was one which the father was aware would occur in the ordinary course of events. Nonetheless, in our view it would be contrary to common sense for the law to classify his acts as "intending" to cause the death of his child and to require the jury so to conclude. In fact, the father acted in the way that he did with the intention of saving the life of the child.[55] This would be so even though he might, under the Draft Code, have a defence of duress of circumstances.
4.49 As Professor Ashworth has observed, the definition under discussion "leaves little room for any evaluative element".[56] 6 It is this absence of scope for evaluation that we believe could, in an unusual case, lead the jury to make a counter-intuitive finding of intention, in order to honour their oath. We would not wish to propose a definition which created that possibility.
A proviso to exclude counter-intuitive findings from the definition of "intentionally"
A person is not to be deemed to have intended any result, which it was his or her specific purpose to avoid.
4.52 As a means of exploring how such a counter-intuitive clause might operate, we have applied such a test to the facts of Yip Chiu-Cheung,[57] a non-homicide case raising interesting issues of motive and intention. This Privy Council case concerned the appellant's conviction for conspiracy to traffic in dangerous drugs. It was held that an undercover enforcement officer (N) who entered into an agreement with the appellant and another to carry out drug trafficking, with the intention of carrying out the unlawful export, had the necessary mens rea for the offence of conspiracy. The undercover officer intended to commit the substantive offence by carrying heroin through customs in Hong Kong and onto an aeroplane, albeit for the best of motives of trying to break the drugs ring. The appellant, as a co-conspirator, could, accordingly, be convicted of a criminal conspiracy, for having conspired with him.
4.53 If the law were to reflect the Draft Code definition of intention coupled with a proviso of the type suggested, there would be no different outcome. It cannot be said that it was N's specific purpose to avoid carrying heroin onto the plane. His purpose was to carry the drug onto the plane in order to expose the drugs ring. The undercover officer thus intended to do the proscribed act.[58] His purpose or motive in doing the intended acts (to expose the drugs ring) was a secondary matter.
Other approaches to avoiding counter-intuitive outcomes
4.54 It was in an effort to avoid bringing such counter-intuitive outcomes within the Draft Code's definition of "intentionally" that the definition in clause 18(b)(ii) of the Draft Code was modified in clause 1(a) of the Draft Criminal Law Bill.[59] The addition of the phrase "if he were to succeed in his purpose of causing some other result" aimed to:
(1) prevent the clause "will occur in the ordinary course of events" from being too narrow, so as to exclude the bomber whose make of bomb has a known 50% failure rate, and
(2) save a defendant from being deemed to have intended a result, which it was his or her specific purpose to avoid.
4.55 However, as we have observed, the facts of Woollin[60] have led us to doubt whether that phrase, in the way that it was used in clause 1(a) of the Draft Criminal Law Bill, offers a workable solution to these problems.[61] The two difficulties identified in respect of clause 18(b) need to be solved in a differently.
4.57 We are unaware of criticism of the other change which clause 1(a) of the Draft Criminal Law Bill would have made to clause 18(b) of the Draft Code. That change was the substitution of the phrase "knows that it would occur in the ordinary…" rather than "aware that it would occur in the ordinary…". We recognise that the word "knows" serves to "re-emphasise that this part of the definition is not dealing with a case of recklessness".[62] For that reason, we believe that the terminology of clause 1(a) is preferable to the expression used in the Draft Code. We retain that change in our proposed new definition.
The phrase "would occur in the ordinary course of events"
4.58 The phrase "would occur in the ordinary course of events" was used in the Draft Code in 1989.[63] In the same year, the Nathan Committee Report of the House of Lords Select Committee on Murder and Life Imprisonment recommended adoption of the Draft Code definition for the purpose of the law of murder.[64] Lord Lane CJ expressed approval of it in the House of Lords debate on this report, saying:
[T]he decision in Nedrick…endeavoured to provide a satisfactory definition of the word "intention"…It is equally true to say, as Professor Glanville Williams points out perspicaciously in an article reprinted on page 121 of the committee's report, that in Nedrick the [C]ourt [of Appeal] was obliged to phrase matters as it did because of earlier decisions in your Lordships' House by which it was bound…As a result, Nedrick was not as clear as it should have been. However, I agree respectfully with the conclusions of the committee that "intention" should be defined in the terms set out in paragraph 195 of the report on page 50.[65] That seems to express clearly what in Nedrick we failed properly to explain…."
4.59 Lord Lane CJ had laid down the "virtually certain" test in the Court of Appeal in Nedrick[66] in 1986.[67] 7 Consequently, in 1989, it was not the tried and tested phrase that it has since become.
4.60 In 1998, Lord Steyn pointed out in Woollin,[68] that "over a period of 12 years since Nedrick, the test of foresight of virtual certainty has apparently caused no practical difficulties. It is simple and clear…".[69] This raises the question of whether it would be better to use the expression "virtually certain" in a new statutory definition of "intentionally", rather than "in the ordinary course of events". In our view, in light of the observations of Lord Steyn in Woollin, it would be preferable to use the tried and tested phrase "knowing that it is virtually certain to occur". The phrase has the advantage of simplicity and it has proved to be workable.
Conclusion
4.61 We believe that the difficulties recognised in respect of each of the previous Law Commission definitions of intention should be addressed by way of revision of the original definition in clause 18(b)(ii) of the Draft Code. Subject to a proviso, the revised definition would continue to equate a certain degree of foresight of a result with intention. It would make it clear that a secondary result that the defendant knows is virtually certain to occur, if he or she succeeds in their purpose, is an intended result.[70] This can be achieved without creating the difficulty encountered with clause 1(a) of the Draft Criminal Law Bill, or those identified in respect of the other solutions proposed to improve that clause.[71]
The First Model: proposal based on Clause 18(b)(ii)
Subject to the proviso set out below:
a person acts "intentionally" with respect to a result when he or she acts either:
(1) in order to bring it about, or
(2) knowing[72] that it will be virtually certain to occur; or
(3) knowing that it would be virtually certain to occur if he or she were to succeed in his or her purpose of causing some other result.[73]
Proviso: a person is not to be deemed to have intended any result,[74] which it was his or her specific purpose to avoid.[75]
THE SECOND MODEL: BASED ON CODIFICATION OF THE COMMON LAW
Where the charge is murder and in the rare case where the simple direction is not enough, the jury should be directed that they are not entitled to find the necessary intention, unless they feel sure that death or serious bodily harm was a virtual certainty (barring some unforeseen intervention) as a result of the defendant's actions and the defendant appreciated that such was the case.[76]
Our views
4.68 There is a possible deficiency in the present statement of the common law. It does not appear to meet the case of the defendant who uses a bomb with, for example, a 50% failure rate.[77] If the preferred way forward were the codification of the common law we would recommend reform designed to address this apparent weakness. This would require that, in such a case, the direction should include reference to the question of whether the defendant would have been "aware that a result was virtually certain (barring some unforeseen intervention) if he or she were to succeed in his or her purpose of causing some other result".
The Second Model: proposal based on codification of the common law
4.69 A codification of the common law would need, first, to refer to the ordinary situation in which a person is to be regarded as acting intentionally. Then it should replicate the Nedrick[78]/ Woollin[79] direction. Finally, the clause relating to the chances of the defendant succeeding in some other purpose should be introduced. The resulting formulation would be as follows:
(1) A person is to be regarded as acting intentionally with respect to a result when he or she acts in order to bring it about.
(2) In the rare case where the simple direction in clause (1) is not enough, the jury should be directed that:
they are not entitled to find the necessary intention with regard to a result unless they are sure that the result was a virtual certainty (barring some unforeseen intervention) as a result of the defendant's actions and that the defendant appreciated that such was the case.
(3) In any case where the defendant's chance of success in his or her purpose of causing some other result is relevant,[80] the direction in clause (2) may be expanded by the addition of the following phrase at the end of the clause (2) direction:
or that it would be if he or she were to succeed in his or her purpose of causing some other result, and that the defendant appreciated that such was the case.
CONCLUSION
4.70 We see advantages and disadvantages in both approaches, namely:
(1) The First Model, defining intention as a matter of law; and
(2) The Second Model, codifying the present common law, with modification, by providing for the circumstances in which the jury is entitled to find oblique intention.
THE DOCTRINE OF DOUBLE EFFECT
4.72 Whichever of the above approaches is preferred, the fact that the criminal law gives "intention" a wider meaning than that of "purpose" raises some difficult questions, particularly in the context of medical treatment of the terminally ill. A doctor may administer drugs on a sound medical basis to a patient in the knowledge that this treatment, though conducted in good faith, will almost certainly shorten the patient's life. Treatment, for example to alleviate pain and suffering in such a case may have a double effect. A doctor's awareness of the virtual certainty of that other effect, the shortening of the patient's life would, without more, classify the medical treatment as an intentional killing.[81]
4.73 The doctrine of double effect is one which, as Robert Walker LJ commented in Re A (Children) (Conjoined Twins: Surgical Separation) "has been debated by moral philosophers, as well as lawyers, for millennia rather than centuries…."[82]
The basis of this doctrine
The distinction between intended results and side-effects
4.74 Joseph Boyle explains that:
The doctrine of double effect rests on a distinction between what a person intends in acting and what a person brings about as a side effect of an intentional action. According to the doctrine of double effect this distinction has moral significance: it is sometimes permissible to bring about as a side effect of one's intentional action what it would be wrong to bring about intentionally.[83]
4.75 Finnis describes side-effects in the following way:
[S]ide-effects, in the sense relevant to morals (and law), are effects which are not intended as end or means, i.e., which figure neither as end nor as means in the plan adopted by choice. [84]
What states of affairs are means and what are side-effects depends on the description which they have in the proposal or plan adopted in the choice which brings them about, i.e., in the clear-headed practical reasoning which makes that plan seem a rationally attractive option.[85]
One's acceptance of the side-effects must satisfy all moral requirements (must "be proportionate", as it was often vaguely put). That something is a side-effect rather than an intended means entails the satisfaction of one, important, but only one, moral requirement: that one never choose – intend – to destroy, damage or impede any instantiation [concrete instance] of a basic human good. [86]
4.78 There is thus a limit to what can legitimately be accepted as a side-effect. "[V]ery often, then, options should be rejected because bringing about the side-effects would be unfair or unfaithful."[87]
The distinction between intention and emotional desire
4.79 Finnis distinguishes intention from emotional desire, but not from volitional desire. Emotional desire concerns something which appeals to one's feelings. Volitional desire is different. One often chooses, intends and does what one does not [emotionally] desire:[88]
Intention includes all that is chosen whether as end or as means, and noting that what is chosen as means is often strongly repugnant to desire in the sense of feelings and emotion.[89]
Whatever, then, is included within one's chosen plan or proposal, whether as its end or as a means to that end, is intended, i.e. is included within one's intention(s).[90]
A definition of murder suggested by Finnis, adopting a narrow meaning of intent
4.81 Finnis suggests broadening the definition of murder "to include not only (i) killing with intent to kill[91] but also (ii) doing without lawful justification or excuse an act which one is sure will kill."[92] In clause (i) the meaning of intent would be confined to that chosen whether as an end or a means. It would not include oblique intent. In clause (ii) justification or excuse are not factors which might act as mitigation or a defence once the offence has been made out; rather they are integral to the presence or absence of a culpable mental state.
Adams
4.82 In Adams[93] the defendant was a doctor, charged with murder, on the basis that he administered increasing doses of morphine to a terminally ill patient who died as a result. Devlin J's directions to the jury included the following:
There has been a good deal of discussion about the circumstances in which a doctor might be justified in giving drugs which would shorten life in cases of severe pain. It is my duty to tell you that the law knows no special defence of this character. But that does not mean that a doctor aiding the sick or the dying has to calculate in minutes or hours, or perhaps in days or weeks, the effect on a patient's life of the medicine which he administers. If the first purpose of medicine, the restoration of health, can no longer be achieved there is still much for a doctor to do, and he is entitled to do all that is proper and necessary to relieve pain and suffering, even if the measures he takes may incidentally shorten life. That is not because there is any special defence for medical men; it is not because doctors are put into any category different from other citizens for this purpose. The law is the same for all, and what I have said to you rests simply upon this: no act is murder which does not cause death. 'Cause' means nothing philosophical or technical or scientific. It means what you twelve men and women sitting as a jury in the jury box would regard in a common-sense way as the cause. If for, for example, a doctor had done something or omitted to do something and death occurs, say on…the Monday instead of the Tuesday, no one with common sense would say the doctor caused death. They would say the cause of death was the injury, or whatever it was, that brought her to hospital….[94]
4.83 In their analysis of this case, Kennedy and Grubb explain:
Devlin J may have been saying that although the doctor did an act which 'played some part in' the death of the patient, the doctor should not be liable, unless he intended to bring about the death. Devlin J must have meant that the doctor should not be held to have intended the death because of the theory of 'double effect', if the jury found that his primary intention was to relieve the pain of his patient. The theory of 'double effect' which Devlin J introduces into English criminal law purports to be a theory about intention. It seems to say that if an act may have two effects and the actor desires only one of them, which is considered a good effect, then he should be regarded as blameless even though his act also produces a bad effect. The words 'primary' and 'secondary' are used to describe the intention concerning the good and the bad effect….[95]
Glanville Williams
4.84 Glanville Williams argued that, for the lawyer, the above theory is not without difficulties:
When you know that your conduct will have two consequences, one in itself good and one in itself evil, you are compelled as a moral agent to choose between acting and not acting by making a judgment of value, that is to say by deciding whether the good is more to be desired than the evil is to be avoided. If this is what the principle of double effect means, well and good; but if it means that the necessity of making a choice of values can be avoided merely by keeping your mind off one of the consequences, it can only encourage a hypocritical attitude towards moral problems.[96]
What is true of morals is true of the law. There is no legal difference between desiring or intending a consequence as following from your conduct and persisting in your conduct with knowledge that the consequence will inevitably follow from it, though not desiring that consequence. When a result is foreseen as certain, it is the same as if it were desired or intended. [97]
4.85 Kennedy and Grubb conclude that Glanville Williams must be right on the law when he makes clear that the consequence that is undesired may nevertheless be intended in law (citing Moloney[98]and Nedrick[99]), adding:
Thus for the lawyer, if not for the moral philosopher, the judgment that an act is blameless cannot analytically rest on a theory of intention as expressed in the 'double effect' theory. It must rest, if anywhere, on a judgment that acts (though intended) ought as a matter of moral judgment and public policy to be regarded as attracting non-blame because of their social worth.[100]
How should the law of murder address the doctrine of double effect?
4.86 In Re A (Children) (Conjoined Twins: Surgical Separation),[101] two different arguments for the basis of the double effect doctrine were put forward. Counsel for the NHS trust[102] relied on dicta in Bland,[103] and in Re J,[104] to argue that what matters in this context is the surgeon's primary purpose. The accelerated death of Mary (the conjoined twin who was bound to die if the surgeons separated her from her stronger twin, Jodie) would be a secondary effect of the surgeon's action which would not justify his conviction for murder. Counsel summarised an argument from "Criminal Liability in a Medical Context: The Treatment of Good Intentions" as:
(1) The true meaning of intention is purpose;
(2) One may purpose ends or means;
(3) One does not purpose a side effect;
(4) Therefore a consequence, even if prohibited, is not intended if it is a side effect.[105]
4.87 Counsel for Jodie[106] (the stronger twin, who would be expected to benefit from surgical separation) referred the Court to a passage in the textbook of Kennedy and Grubb,[107] which criticises the doctrine of double effect in so far as it is advanced as negating the necessary elements of intention or causation for the crime of murder, saying:
[T]he more appropriate analysis is as follows: the doctor by his act intends (on any proper understanding of the term) the death of his patient and by his act causes (on any proper understanding of the term) the death of his patient, but the intention is not culpable and the cause is not blameworthy because the law permits the doctor to do the act in question.[108]
4.88 Brooke LJ acknowledged that this argument answered the anxieties about manipulation of the law of causation expressed by Lord Mustill in Bland,[109] 9 but held that it was not necessary for the purpose of the decision in Re A, to decide authoritatively whether this is the correct analysis.
4.89 Robert Walker LJ pointed out that Woollin[110] has nothing to say about cases where an individual acts for a good purpose that cannot be achieved without also having bad consequences. In a similar vein, neither does the provision on "intention" in the Draft Code say anything about this. Provided that Kennedy and Grubb's analysis is preferred, this does not present a problem. Recognition of the doctrine can be made elsewhere in the law, under "Defences".[111]
Conclusion
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Note 1 Contained in a Criminal Code for England and Wales (1989) Law Com No 177. See clause 18(b). [Back] Note 2 A scenario is given at para 4.21. [Back] Note 4 V Krey, German Criminal Law, Vol II (2003) para 338. For example D shoots his wife V dead hoping to profit from her life insurance. V’s death is a necessary interim goal in order to realise the final goal of claiming the insurance. [Back] Note 5 Ibid, para 343-344. For example D wants to commit an insurance fraud. He plans to set his farm on fire knowing that his paralysed grandmother, V, is living on the upper floor. D is sure that she will die and regrets this, as he is fond of her. This is not Intent First Degree, as D does not aim at V’s death. That death was not a goal of D’s at all. It is Intent Second Degree. D knew that the fire would kill V. [Back] Note 6 Ibid, paras 346-348. For example, during a robbery, D1 and D2 want to strangle V with a leather belt to make him unfit to fight. Their attempts at stunning V had failed so they strangle him, realising that he could be strangled to death. They accepted death as a possible result of strangulation – this is Intent Third Degree. [Back] Note 7 See paras 4.75-4.81. [Back] Note 8 Contained in A Criminal Code for England and Wales (1989) Law Com No 177. [Back] Note 9 Contained in Legislating the Criminal Code: Offences Against the Person and General Principles (1993) Law Com No 218. [Back] Note 10 [1990] Crim LR 85. [Back] Note 11 See Consultation Paper No 122 paras 5.9-5.11, and Legislating the Criminal Code:
Offences against the Person and General Principles (1993) Law Com No 218, paras 7.11-7.13. [Back] Note 12 Ibid, para 7.11. Note that the Criminal Bar Association, in its comments on consultation responding to Legislating the Criminal Code: Offences Against the Person, Consultation Paper No 122, stressed the desirability of avoiding any suggestion that the second part of the definition of “intention” might encompass cases of mere recklessness. [Back] Note 13 Consultation Paper No 122, para 5.9. See also Law Com No 218, para 7.12. [Back] Note 14 Note the comment of Professor Smith in “A Note on ‘Intention’” [1990] Crim LR 85, 86, n 12 that the Code team was aware of this defect in the definition in the first version of the Code (Codification of the Criminal Law: A Report to the Law Commission (1985) Law Com No 143, clause 22) – see commentary on Moloney [1985] Crim LR 379, 382-3 – that “it is regrettable that the opportunity was not taken to deal with it in the later, current, version of the Code” [1989]. [Back] Note 15 See eg the scenario described at para 4.21. [Back] Note 16 J C Smith, “A Note on ‘Intention’” [1990] Crim LR 85, 86. [Back] Note 17 Nathan Committee Report, Report of the House of Lords Select Committee on Murder and Life Imprisonment (HL paper 78-1, 1989). [Back] Note 18 The example might equally have read, “virtually certain” – the test which under the current Nedrick ([1986] 1 WLR 1025) / Woollin ([1999] 1 AC 82) test would need to be satisfied for a conviction of murder. [Back] Note 19 J C Smith, “A Note on Intention” [1990] Crim LR 85, 89. [Back] Note 20 In A P Simester and A T H Smith (eds) Harm and Culpability (1996) 173, 179. [Back] Note 21 Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112. The applicant sought a declaration that NHS guidance relating to contraceptive treatment for those under 16 was unlawful and wrong. The High Court refused to issue a declaration. The House of Lords allowed an appeal against the first declaration issued by the Court of Appeal and overruled a second declaration as erroneous. [Back] Note 22 Summarised in [1957] Crim LR 365. The defendant was a doctor who administered drugs in order to relieve pain and was acquitted of murder. [Back] Note 23 [1947] KB 997, 998. The defendant’s conviction for the ‘ulterior intent’ offence of “doing an act likely to assist the enemy with the intent to assist the enemy” was quashed on appeal on the basis that if the act was as consistent with an innocent intent as with a criminal intent, the jury should be left to decide the matter, [Back] Note 24 [1975] AC 55, 77. The example given is of the doctor who wounds his patient by “opening him up”. He would not be guilty of an offence because he would not have the required intent. [Back] Note 25 The “standard formulation” to which Ashworth refers is explained in his opening paragraph:
The standard formulation of intention in criminal law texts consists of either acting in order to bring about the prohibited result or, if the actor’s purpose is otherwise, acting with awareness that the result is virtually certain to follow (173).
[The footnote at the end of this passage cites: “Law Commission No. 177, A Criminal Code for England and Wales (1989), vol. 1, cl. 18, as slightly re-drafted by Sir John Smith, ‘A Note on Intention’, [1990] Criminal LR 85.”] [Back] Note 26 A Ashworth “Criminal Liability in a Medical Context: The Treatment of Good Intentions” in A P Simester and A T H Smith (eds) Harm and Culpability (1996) 173, 173. [Back] Note 27 In Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112, the House of Lords reversed the Court of Appeal decision. Lord Scarman, in the majority in the House of Lords, said:
The bona fide exercise by a doctor of his clinical judgment must be complete negation of the guilty mind which is an essential ingredient of the criminal offence of aiding and abetting the commission of unlawful sexual intercourse…. If the prescription is the bone fide exercise of his clinical judgment as to what is best for his patient’s health, he has nothing to fear from the criminal law or from any public policy (190F-191A).
Lord Fraser, also in the majority, said:
[T]his appeal is concerned with doctors who honestly intend to act in the best interests of the girl, and I think it is unlikely that a doctor who gives contraceptive advice or treatment with that intention would commit an offence under section 28 [of the Sexual Offences Act 1956] (175A).
Lord Bridge, also in the majority, 194F, adopted the passage from the judgment of Woolf J, at first instance [1984] QB 581, 593B–595E, with reference to possible criminal complicity of the doctor. Woolf J recognised that:
a doctor who is misguided enough to provide a girl who is under the age of 16, or a man, with advice and assistance with regard to contraceptive measures with the intention thereby of encouraging them to have sexual intercourse, is an accessory before the fact to an offence contrary to section 6 [of the Sexual Offences Act 1956] (593E).
He assumed that that would not usually be the attitude of the doctor (593F). “[I]n the majority of situations the probabilities are that a doctor will be able to follow the advice without rendering himself liable to criminal proceedings” (595F). [Back] Note 28 [1990] Crim LR 85. [Back] Note 29 It should be noted that in Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112, the House of Lords restored the first instance decision of Woolf J on a threefold basis:
(1) Parliament regarded contraceptive treatment and advice as essentially medical matters. A girl under 16 years had legal capacity to consent to medical treatment if sufficiently mature to understand it.
(2) The dwindling parental right to control a minor existed only insofar as required for child’s benefit and protection.
(3) The bona fide exercise by a doctor of his clinical judgment was a complete negation of the guilty mind, which was essential for the commission of a criminal offence (per Lord Scarman, 190F-191A). It is unlikely that a doctor who honestly intends to act in the best interest in giving contraceptive advice or treatment would commit an offence under section 28 of the Sexual Offences Act 1956 (per Lord Fraser of Tullybelton). [Back] Note 30 Consultation Paper No 122. [Back] Note 31 Legislating the Criminal Code: Offences Against the Person and General Principles (1993) Law Com No 218. [Back] Note 32 [1999] 1 AC 82. [Back] Note 33 J C Smith, “Offences Against the Person: The Home Office Consultation Paper” [1998] Crim LR 317, 318. [Back] Note 36 A P Simester and G R Sullivan, Criminal Law, Theory and doctrine (2nd ed 2003) 132, n 45. Italics show revisions to clause 1. [Back] Note 37 A Khan, “Intention in Criminal Law: Time to Change?” (2002) 23(3) Statute Law Review 235. He suggests as a possible redraft:
A person acts with the intention to bring about a result when —
(a) he brings that result about with a wicked desire,
(b) although it is not his desire to cause it, it occurs in the ordinary course of events when he succeeds in his wicked desire of causing some other result (238). [Back] Note 39 A R White, Grounds of Liability: An Introduction to the Philosophy of Law (2nd ed 1989) 173. [Back] Note 40 See paras 4.36-4.37. [Back] Note 41 J C Smith, “A note on ‘Intention’” [1990] Crim LR 85, 86. [Back] Note 44 A Khan, “Intention in Criminal Law: Time to Change?” (2002) 23(3) Statute Law Review
235. [Back] Note 45 [1986] 1 WLR 1025. The defendant poured paraffin through the letterbox of a house and onto the front door and set it alight. The house burned down and a child died. [Back] Note 46 [1999] 1 AC 82. The defendant lost his temper and threw his 3-month-old baby onto a hard surface. The baby sustained a fractured skull and died. The model direction, described by Lord Steyn as “by now a tried-and-tested formula”, is:
Where the charge is murder and in the rare cases where the simple direction is not enough, the jury should be directed that they are not entitled to find the necessary intention, unless they feel sure that death or serious bodily harm was a virtual certainty (barring some unforeseen intervention) as a result of the defendant’s actions and that the defendant appreciated that such was the case. The decision is one for the jury to be reached upon a consideration of the evidence.
(This is the Nedrick direction as set out and modified by Lord Steyn in Woollin [1999] 1 AC 82, 96. [Back] Note 47 [2003] EWCA Crim 192; [2003] 2 Cr App R 30, 43 per Rix LJ. [Back] Note 48 Law Com No 218, paras 6.1-7.3. [Back] Note 49 Law Com No 177, vol 2, para 8.16. [Back] Note 50 An example of an offence which involves intention with respect to a “circumstance” is criminal damage. In Smith (DR) [1974] QB 354 it was held that the fault elements of intention, recklessness and absence of lawful excuse required to constitute this offence refer to the circumstance that the property belongs to another. [Back] Note 51 Law Com No 177, vol 2, para 8.16. [Back] Note 53 Law Com No 177, vol 2, para 8.16. [Back] Note 55 Professor Smith comments that “[o]ne answer, and perhaps the best answer, to this might be that men who throw little girls out of attics to their deaths ought to be convicted of murder unless there is some very good reason why not; and the reason why this is not murder is that the necessity of the occasion justifies or excuses the father’s conduct” [1990] Crim LR 85, 89. Professor Smith then criticises the failure of the courts to develop a defence to deal with such circumstances. Our concern however, is that it is wrong that a person whose purpose it is to save a life and takes a very serious risk in order to do so should, in such a case, be deemed to have intended to kill. [Back] Note 56 A Ashworth “Criminal Liability in a Medical Context: The Treatment of Good Intentions”, in A P Simester and A T H Smith (eds) Harm and Culpability (1996) 172, 183. [Back] Note 57 [1995] 1 AC 111. [Back] Note 58 The exporting of illegal drugs. [Back] Note 59 To provide:
[A] person acts —
“intentionally” with respect to a result when –
(i) it is his purpose to cause it, or
(ii) although it is not his purpose to cause it, he knows that it would occur in the ordinary course of events, if he were to succeed in his purpose of causing some other result; [Back] Note 60 [1999] 1 AC 82. [Back] Note 61 See paras 4.29-4.37. [Back] Note 62 Legislating the Criminal Code: Offences Against the Person and General Principles (1993) Law Com No 218, para 7.11. [Back] Note 63 The Commentary to the Draft Criminal Code 1989 states: “We have adopted the phrase ‘in the ordinary course of events’ to ensure that ‘intention’ covers the case of a person who knows that the achievement of his purpose will necessarily cause the result in question, in the absence of some wholly improbable supervening event.” (Law Com No 177, vol 2, para 8.15). [Back] Note 64 Nathan Committee Report, Report of the House of Lords Select Committee on Murder and Life Imprisonment (HL Paper 78-1, 1989) para 71. [Back] Note 65 The proposal referred to defines intentionally in the following way: A person acts ‘intentionally’ with respect to…a result when he acts either in order to bring it about or being aware that it will occur in the ordinary course of events. [Back] Note 66 [1986] 1 WLR 1025. [Back] Note 67 In the previous year, Lord Bridge in Moloney [1985] AC 905, 929, had used the expression “in the ordinary course of events” when explaining what was conveyed by the word “natural” in the old presumption that a man intends the natural and probable consequences of his act. [Back] Note 68 [1999] 1 AC 82. [Back] Note 70 Reference to “if he succeeds in his purpose” aims to make it clear that such a secondary purpose will be intended even if there is not a high chance of the primary purpose being attained. [Back] Note 71 See paras 4.29-4.37. [Back] Note 72 We are adopting “knowing” from the Draft Criminal Law Bill definition, in preference to the phrase “is aware that” as we believe that this provides a clearer distinction between cases that are “intentional”, and those that are “reckless”. [Back] Note 73 See Professor J C Smith’s article, “Offences Against the Person: The Home Office Consultation Paper” [1998] Crim LR 317, 318. [Back] Note 74 At present the mens rea of murder is the intention to cause death or grievous bodily harm; accordingly either such result could be excluded by the operation of this clause. [Back] Note 75 The reason that we propose inclusion of this counter-intuitive clause is concern that, without it, the definition in para 4.62(2) could result in the defendant in the burning attic scenario being deemed to have intended a result that it was their purpose to avoid. [Back] Note 76 This is the Nedrick [1986] 1 WLR 1025 direction as set out and modified by Lord Steyn in Woollin [1999] 1 AC 82, 96. [Back] Note 78 [1986] 1 WLR 1025. [Back] Note 79 [1999] 1 AC 82. [Back] Note 80 Clarification would be required where the defendant uses a bomb with a higher than 50% failure rate. Otherwise it could not be said that: “they feel sure that the result was a virtual certainty (barring some unforeseen intervention) as a result of the defendant’s actions and the defendant appreciated that such was the case”. [Back] Note 81 Brooke LJ explained in Re A (Conjoined Twins: Surgical Separation) [2001] Fam 147, 216G, that the doctrine of double effect does permit a doctor, in the best interests of his or her patient, to administer painkilling drugs in appropriate quantities for the purpose of relieving that patient’s pain, even though the doctor knows that an incidental effect of the administration of these drugs will be to hasten the moment of death. See also Airedale NHS Trust v Bland [1993] AC 789, 867, and Re J [1991] Fam 33, 46, referred to in the judgment. [Back] Note 82 [2001] Fam 147, 251. [Back] Note 83 J Boyle, “Who is Entitled to Double Effect” (1991) 16 The J of Medicine and Philosophy 475, 476. [Back] Note 84 J Finnis “Intention and Side-effects” in R G Frey, Liability and Responsibility (1991) 32, 42. [Back] Note 86 Ibid, 56. See also the concluding remarks at 63-64. [Back] Note 91 By “intent” here, Finnis means that which has been chosen as the end or the means but not accepted side-effects. [Back] Note 93 Summarised in [1957] Crim LR 365. [Back] Note 94 Quoted in I Kennedy and A Grubb, Medical Law:Text with Materials (2nd ed 1994) 1205, and R Hallworth and M Williams, Where There’s A Will… The Sensationsational Life of Dr John Bodkin Adams (1983). [Back] Note 95 I Kennedy and A Grubb, Medical Law:Text with Materials (2nd ed 1994) 1205. [Back] Note 96 Challenging this, Finnis, in his paper, “Intention and Side-effects” in R G Frey, Liability and Responsibility (1991) 32, 51, said: “Williams manifested the most thoroughgoing misunderstanding of the so-called doctrine of double effect, which in the aspects here relevant is nothing more than an analysis of intention in terms of chosen means and ends. Such an analysis of intention has nothing to do with “keeping one’s mind off” the unintended but foreseen consequences, nor with whether one emotionally welcomes that consequence”. [Back] Note 97 Glanville Williams, The Sanctity of Life and the Criminal Law (1958, Carpentier Lectures at Columbia, 1956), 286. [Back] Note 99 [1986] 1 WLR 1025. [Back] Note 100 I Kennedy and A Grubb, Medical Law:Text with Materials (2nd ed 1994) 1206. [Back] Note 101 [2001] Fam 147. [Back] Note 102 Mr A Whitfield, QC. [Back] Note 103 [1993] AC 789, 867, per Lord Goff. [Back] Note 104 Re J (A Minor) (Wardship: Medical Treatment) [1991] Fam 33, 46. [Back] Note 105 A Ashworth, “Criminal Liability in a Medical Context: The Treatment of Good Intentions”, in A P Simester and A T H Smith (eds) Harm and Culpability (1996) 172. [Back] Note 107 I Kennedy and A Grubb, Medical Law: Text and Materials (2nd ed 1994). [Back] Note 109 [1993] AC 789, 895-896. [Back] Note 110 [1999] 1 AC 82. [Back] Note 111 Addressing the offence/defence borderline when reviewing Alan Norrie’s critique of the criminal law in Punishment, Responsibility and Justice: A Relational Critique (2000) G R Sullivan comments that that is an issue “which should be regarded as without substance. The matter of substance is whether the necessary and sufficient conditions of proof for liability for a given offence can be identified with a reasonable degree of assurance.” In “Is Criminal Law Possible” (2002) 22(4) OJLS 747, Sullivan welcomes the decision of the House of Lords in Lambert [2001] UKHL 37, [2002] 2 AC 545 “for the clear recognition that whether a matter requiring proof or disproof in terms of liability for an offence is designated an offence element or a defence element may merely reflect different modes of drafting and does not go to the substance of the presumption of innocence”. [Back]
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