Intention and Foresight in the British Law of Murder
Establishing the mens rea for murder is often a difficult task. Unfortunately, this task has been made all the more difficult in British Law by confusions regarding the nature of intention and foresight. Lord Hailsham said, with reference to the landmark Hyam case, foresight of a high degree of probability is not at all the same as intention; and it is not foresight but intention which constitutes the mental element of murder.(1) While Hailsham was quite correct in claiming that foresight is not the same as intention, he was (as I shall show) incorrect to insist that intention is a necessary constituent of the mental element in murder.
At least since the 1967 Criminal Justice Act, British Law has seen a move away from both foreseeability and actual foresight as necessary constituents of the mens rea for murder. In this paper I argue that while it is important to distinguish between the foreseeable, the actually foreseen, and the intended, such distinctions do not disqualify the actually foreseen as, in some cases, being a sufficient condition for meeting the mens rea requirement for murder. Under certain conditions an act can be culpable which is intended but not foreseen, and also an act can be culpable which is foreseen but not intended. British law has been misguided in its attempts to build foresight into the concept of intention, working under the presumption that demonstrating intention is necessary to establish mens rea. In response to this confusion, I shall argue for the reinstatement of felony murder or, in lieu of this, for the adoption of ordinary language in the law of murder.
1.-- Intention, Foresight, and Desire
British law has been plagued by a number of mistaken assumptions regarding the connections among intention, foresight, and desire. I shall argue that there are actually no necessary connections between any two of these concepts. I shall further argue that not only are intention and foresight logically and linguistically distinct, but each can at times, without the other, constitute the mens rea for murder. I shall take an ordinary language approach to the analysis of these concepts. Of course, we cannot just presume that ordinary language use should be the same as legal use; there are special aspects of the legal arena which may arguably justify specialized use.(2) As I shall in time make clear, however, the ordinary language uses of intention, foresight, and desire are the most appropriate. They accomplish the task while avoiding unnecessary and detrimental confusion.
Let us begin with a refutation of a long presumed principle in criminal law: foresight implies intention. Indeed, prior to the 1967 Criminal Justice Act the even stronger claim that foreseeability implies intention was maintained. This was, of course, quite mistaken -- not everything which is foreseeable is always actually foreseen. The presumption was that what is foreseeable is foreseen, and that what is foreseen is intended. As the Hyam and Moloney(3) cases illustrate, however, what is deemed foreseeable is sometimes not actually foreseen.
The more interesting claim, though, is that what is foreseen is intended. This claim too is mistaken. All we need do is look at the meanings of foresight and intention in light of a simple example. I can correctly be said to foresee that the sun will rise tomorrow, but I cannot correctly be said to intend that the sun will rise tomorrow. I can only intend what is in my power (or what I believe is in my power) to bring about. I note also that I can only correctly be said to foresee what actually happens.(4) There is no such thing as mistaken foresight; what I am mistaken about I do not truly foresee. This understanding may at first seem odd, but a little reflection shows that it does fit with ordinary language. In the criminal law, however, we are not typically concerned with issues and examples such as whether the sun will rise. Rather, we are concerned with actions(5) and their consequences. Perhaps the classic counterexample to the proposition that foresight of the consequences of an act implies intending those consequences is that in the act of drinking a bottle of whiskey I may foresee that I will have a hangover the next day while not intending to have a hangover.(6)
The proposition that intention implies foresight is also subject to counterexamples, and is thus false. We commonly intend to do things that we do not ever actually do, and so which we truly do not foresee. (We can have bare intentions but not bare foresight.) I may intend to mow the lawn tomorrow without foreseeing this, without any mental accompaniment or imagery. Also I may intend to mow the lawn tomorrow without ever doing it, and so without having foreseen it.
The question may arise: How can we distinguish between intention and foresight? Certainly it is not always immediately clear whether something was intended, foreseen, or both. R.A. Duff has provided a neat and tidy answer to this question with what he calls the test of failure. If my action does not produce an expected effect, will it have been a failure? If so it was intended, and if not it was at most foreseen.(7) Notice, the test is given in terms of expected effects -- not desired effects.
It has also been a common presumption in British law that intention implies desire.(8) Clearly, however, we do not always desire what we intend. For example, in the Steane case(9), in which an Englishman was forced by the Germans to broadcast Nazi propaganda, the defendant intended to assist the enemy in this way -- but he certainly did not desire to assist them. He would have been very happy if his broadcasts were of no real help whatsoever. He intended to provide assistance as he was asked in order to protect himself and his family; he did not intend or desire his assistance to be helpful, though certainly he foresaw this.(10) It clearly, then, violates ordinary language to call all the consequences of intended actions desired.
More straightforwardly, desire does not imply intention. We commonly desire things we do not intend, some of them in our power and some not. I may desire Ms. X as my bride, but I do not intend to marry her. It seems out of my power. This applies to actions and their consequences as well. Someone may recognize that it is within his power to quit smoking thereby improving his health, desire to quit, and still not intend to quit.
We turn now to the relationship between foresight and desire. Foresight clearly does not imply desire. I may foresee something that I do not desire at all. Strolling across a field, I may foresee that it will soon rain and that I will get wet, although I do not desire this at all. Again, in terms of consequences of my actions, I may foresee that drinking a bottle of whiskey will give me a hangover without desiring the hangover. Also, of course, desire does not imply foresight. I may desire Ms. X as my bride, although I do not foresee her becoming my bride. In terms of actions and consequences, I may desire that with the swing of my bat I will hit the ball out of the park -- without foreseeing this happening.
To be clear, then, there are no necessary connections among intention, foresight, and desire -- at least as each is understood in ordinary language. And ordinary language in the law not only has the advantage of being the most accessible to juries, but as we shall see, is all that is needed. There is no need for an awkward legal understanding of intention because even without intention there are cases in which we would want to say we have the mens rea, the guilty mind, needed for murder. Before exploring how this is so, let us turn to a clarification of the intended and the foreseen.
2.-- The Intended and the Foreseen
As I have suggested, British law has attempted to bring much of what is only foreseen under the concept of intention. Behind this attempt is the unfortunate necessity under existing law that only demonstration of intention is sufficient to establish the requisite mens rea for murder. At work here is the mistaken reasoning that what is foreseen is intended, and so we can be held criminally responsible for what we foresee. As we saw in the previous section, however, foresight of the consequences of an action does not necessarily imply the intention of those consequences. Still, we may want to hold someone criminally responsible for action done with foresight but without intention. We shall take this issue up in a subsequent section.
In coming to terms with what is intended it is instructive to consult Bentham's distinction between direct and oblique intentions.(11) A direct intention is aimed at the goal of the intentional action, while an oblique intention encompasses expected side-effects. Bentham did not see a significant legal or moral difference between the two kinds of intention, but others do.(12) If we understand intended agency in accord with ordinary language as, an agent intends those results which she acts in order to achieve,(13) oblique intention is no intention at all. Oblique intentions are not in order to, but rather are constituted by accidental side-effects. Such side-effects may well be foreseen, but they are not necessarily intended. As Burleigh T. Wilkins has said,
[I]n my judgment the concept of oblique intention represents a desperate fudge which seeks by linguistic fiat to bridge the gap between a necessary and a sufficient condition.
Duff has wrestled with the problem of so-called direct and oblique intention and offered his own nomenclature. To be certain, Duff's approach represents an advance over Bentham's, but, as we shall see, it is still unsatisfactory. Dispensing with direct and oblique intentions, Duff speaks instead of acts done with intention and acts done intentionally.(15) Acts done with intention correspond roughly to Bentham's direct intentions. We say, for example, that the gunman pulled the trigger with the intention of killing his victim. Duff's acts done intentionally are significantly different from Bentham's oblique intentions, however. Duff's acts done intentionally do not encompass all expected side-effects, but rather, those side-effects of whose occurrence I am morally certain and for which I am properly held responsible.(16)
By restricting acts done intentionally to those which I am certain of and for which I am properly held responsible, Duff attempts to avoid problems with conversational implicature.(17) Without making these qualifications we would have to say, for example, that my dentist intentionally causes me pain when he drills my teeth. While of course the dentist foresees this side-effect as certain, it would not be proper to blame him for it -- and so it would be misleading to say he causes me pain intentionally.
Duff's solution does not avoid all problems of conversational implicature, however. If an agent's act done intentionally is not at all his reason for acting, it is still misleading to say he has done it intentionally. Under Duff's schema an act which I foresee as certain and for which I am properly held responsible, but which is no part of my reason for acting, is still done intentionally. This is counterintuitive and unnecessarily confusing. The intended act and the intentionally done act are too close linguistically to accommodate neatly such disparate acts. Why not simply call the acts as they are -- intended and foreseen? Duff clings to this intended/intentional distinction because he holds to the idea that some form of intention is necessary to establish the mens rea for murder.
Let us then call the intended what Duff calls the intended -- those results which an agent acts in order to achieve. Let us call the foreseen what is known or correctly envisioned beforehand. To be certain, the intended and the foreseen frequently overlap and when they do there is usually little difficulty in assigning responsibility to the agent. As we shall now see, however, we can have the mens rea, the guilty mind, necessary for murder when the act is intended but not foreseen, and more importantly when the act is foreseen but not intended.
3.-- Intention and Responsibility
The guilty act (actus reus) accompanied by an intention to commit the act is the paradigm of the act for which I am properly held criminally responsible. I do not wish to dispute this. I do wish, however, to point out that such an intention need not include actual foresight. As I demonstrated in the previous section, intention does not entail foresight. For example, I may intend to kill someone--anyone --, take aim at Smith, shoot, but instead kill Jones who was standing next to him. Here I had an intention to kill, but did not foresee the death of the man I killed. Nonetheless I am clearly guilty of murder.
I should point out, as well, that in some cases neither intention nor intention plus foresight is sufficient for responsibility. As H.L.A. Hart makes clear, in the Steane case the Englishman charged with assisting the enemy by broadcasting Nazi propaganda was acquitted on the wrong grounds.(18) It is simply not the case that his acts were not in order to assist the enemy. Thus he did have the intention to assist the enemy (with "assist" loosely understood), and I might add actual foresight as well. He was deserving of acquittal, however, not because of a lack of intention or foresight but because his actions were done under duress.
One might then argue that the act requirement was not met, but indeed it was. His actions were voluntary (he could have done otherwise although he was strongly coerced) and in and of themselves the actions were criminal. It is only that the mental element was in some way lacking because of the duress. Both intention and foresight were present without there being a guilty mind.
We should note that British law does recognize cases in which no mental element is required for criminal responsibility. These include cases of strict liability, such as that in statutory rape. These cases notably do not include felony murder(19), at least since it was abolished under the heading of `constructive malice' in the Homicide Act 1957. It is the absence of felony murder which has given rise to much of the debate and word play surrounding intention and foresight in the law. In the Hyam case, for example, Mrs. Hyam would have been successfully prosecuted under felony murder charges. Whether or not she intended to kill anyone by firebombing the house would not have been an issue. Our intuitions and good judgment tell us that even if Mrs. Hyam were telling the truth about her intentions that should make no difference. Reinstatement of felony murder would be the simplest and most reasonable solution to the problems regarding intention and foresight in the British law of murder.(20) Assuming that such reinstatement is not forthcoming, however, the implementation of ordinary language uses of the terms `intention' and `foresight' would suffice.
4.-- Foresight, Responsibility, and Murder
It should indeed be possible under British law to sometimes find an agent guilty of murder when the act is done with foresight but without intention.(21) This is so, in part, because foresight does not logically imply intention, and neither does desire imply intention. I submit further that even the combination of foresight and desire does not imply intention. That is, an act can be both foreseen and desired, with regard to consequences and otherwise, and yet if it had not happened the case would not have failed the test of failure, because the intention was quite separate and distinct.
Take the following example. Dr. Smith has developed drug X to treat disease Y. For various reasons he has decided that drug X should now be tested on human beings. Disease Y is out of control, and it is Dr. Smith's noble intention to stop it. While he believes and foresees that a substantial number of the experimental sample population will be cured of disease Y by drug X, he also foresees that a small number are likely to be killed by the drug. Further, he does not inform the sample population of the risk of death. Also, among the sample population is Jones, a man whose death Dr. Smith desires.
If any of the members of the sample population were killed as a result of taking drug X, Dr. Smith would rightly be convicted of murder. His actions go beyond recklessness, and the deaths of these innocents are certainly constitutive of more than manslaughter. He deserves to be punished to the fullest extent of the law.(22) Here we have the foreseen and desired death of an individual (although, of course, Dr. Smith did not specifically foresee that Jones would be among those killed). In the case of Jones or any other member of the sample, however, death was not intended.
If we apply the test of failure to this scenario we find that the act would have been considered a complete success if no one had died at all, including Jones. Dr. Smith's intention was simply to benefit humankind by finding a cure for a disease. Still, the deadly side-effects which were foreseen should be enough to make Dr. Smith guilty of murder. Any system, including the British one, which would fail to convict Dr. Smith of murder is certainly flawed in this respect. Foresight without intention can and should be sufficient, in some cases, to establish the mental element necessary for a conviction of murder.
The use of language in which I couch my point here is somewhat novel, although the intuition behind it has long been with us. That intuition is simply that we are responsible for a very broad range of actions. Bentham had it in suggesting that we are responsible for what we obliquely intend. More recently, Duff expressed this intuition in his uses of `intended' and `intentionally'. My contribution has been to argue that British law should not hold on to intention as a necessary element of the mens rea for murder. When intention and foresight are understood in accord with ordinary language, each can at times be sufficient for establishing mens rea.(23) With this in mind, there seems to be no reason to cling to legalistic definitions of these terms, and in fact there are obvious advantages to using ordinary language in the law -- not the least of which is to facilitate the work of juries.
While I hope to have clarified some matters regarding the mens rea for murder, I have left some old questions untouched. I have not broached the questions of how to prove intention or prove foresight. Proving intention has long been a problem in the law and in the philosophy of law. It was once thought that an act being foreseeable was sufficient to prove foresight, and that foresight was sufficient to prove intention. None of this is truly the case, however. We must now separately pursue the questions of how to prove intention and how to prove foresight. The task also remains of discovering under what conditions the various combinations of intention, foresight, and desire may be sufficient for establishing the mens rea for murder. I leave these questions and this task for another time, and with the hope that the reader will consider and perhaps undertake them.(24)
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