The Law Commissions review of the law of intention

The Law Commissions analyse of the law of objective&aposThe Law Commission&aposs review of the law of role confirms the viewthat the English law of end for murder is based upon an chthonicstanding that overlooks in 2 opposite ways. First, as regards direct intention, the law is morally under-inclusive in that it places in like manner much moral freight on a psychological conception of the required mental state. It and so fails to recognise properly the theme and significance of the concept of &apos undiscriminating malice&apos. Secondly, as regards direct and mediate intention, the law is morally over-inclusive, impuissance to differentiate culpable and non-culpable acts.&apos(Norrie, 2006)Critically discuss the above statement with reference to the article of faith of intention in relation to the crime of murder and the Law Commission&aposs quotation Paper Homicide (No.177, 2005).Before we become our discussion, let us foremost be quite clear on what is meant by dire ct intention, indirect intention and indiscriminate malice in the context of the above statement.Intention literally intend aim or place that guides an action1. Therefore, direct intention, in the context of murder, means an act move with the direct purpose of pull downing, or causing serious harm to, another. This has been one of the mens rea requirements for murder as uttermost back as the 17th Century2. Clearly, this precludes an intention to achieve another criminal purpose altogether, where the faker ought reasonably to set about foreseen, notwithstanding did not directly intend, the final stage of another to be a realisticly sure return of his actions, e.g. the intention of a person who places a bomb on a plane for the purpose of making an insurance claim in respect of property but who foresees as a virtual indisputablety the death or serious in control panel of those who atomic number 18 on the plane when the bomb explodes.3 This is what Norrie refers to as ind iscriminate malice malice, in that the actor intended to perform an illegal act, and indiscriminate, in that the actor remunerative little or no regard to the to the highest degree certain consequences of his actions, namely the death of another. It has long been accepted that the law should recreate actions of indiscriminate malice within the scope of the crime of murder, but that a exigent requirement of direct intention would fail to do so direct intention is simply also narrow for the purposes of criminal responsibility4. Thus, the concept of cognitive indirect intention was born, introduced into English law in the geek of Nedrick5. such intention does not swallow to be direct, but can merely involve a degree of foresight which, if possessed, should warrant a blameion of murder rather than manslaughter, a crime which denotes a too low a degree of criminal and moral culpability for actions where the death of another is virtually an incidental certainty. This doctrine, i n its true form, was laid down by Lord Lane CJ Nedrick6 in 1986, and special by Lord Steyn in Woollin7 Where the charge is murder and in the r be case where the simple advocate is not enough, the jury should be order that they are not entitled to find the necessary intention, unless they relish sure that death or serious bodily harm was a virtual certainty (barring few unforeseen intervention) as a result of the defendants actions and the defendant appreciated that much(prenominal) was the case.8 virtually commentators digest argued, as Norrie does at the top of this theme, that such an extension has gone too far whilst indiscriminate malice now clearly comes within the scope of this extended intention requirement for murder, which is a ripe thing, other actions are now also included under the crime of murder, crime which, due to the lack of criminal and moral culpability involved, would be more fairly labeled as manslaughter. An example of such an action macrocosm so ra wly labeled was profferd by Lord Goff in the Nathan Committee melodic theme by the House of Lords Select Committee on Murder and Life bonds 9 A stick out is on fire. A father is trapped in the attic floor with his two little girls. He comes to the conclusion that unless they leap out they leave alone all be burned alive. But he also realises that if they jump they are all virtually certain 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 at a lower place and he 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. The Law Commission, in citing and analyzing this example, came to the conclusion that the father in this case should not be labeled a murderer. Under the concept of indirect intention however, the father should be guilty of this second-degree crime. As Norrie notes10, the Law Commission were forced to conclude that indirect intention, by focusing on the acquaintance of the father rather than the wishes behind his actions, was morally over-inclusive, failing to differentiate correctly amid culpable and non-culpable acts, i.e. between actions of indiscriminate malice, such as the insurance fraudster who blows up the plane with no regard to the life of those on that plane, and actions involving no malice, but which are indiscriminate in their effects, such as the actions of the desperate father in Lord Goffs example above.In this paper I shall address these concerns in detail, concluding that a cognitive approach to intention may simply be unsuitable for the crime of murder it fails to adequately demark the boundaries of culpability between this crime and that of manslaughter. I shall then examine the Law Commissions audience Paper Homicide (No.177, 2005), and shall critically discuss their approach to these problems, concluding with an assessment of how successful these ameliorate proposals would be in their aim of differentiating correctly between culpable and non-culpable acts, if implemented.As we have already seen from the examples discussed above, Norrie is quite right in his assertions the requirement of direct intention is too focussed on the peculiar(prenominal) mental state of the actor with the effect that the charge of murder would be precluded for anyone other than an offender who either directly intended to kill his victim, or at least intended to cause that victim serious harm from which death was a reasonably foreseeable result. Likewise, the extension of this requirement to include indirect intention, whilst at least serving to bring crimes of indiscriminate malice under the scope of murder, also serves to bring other such actions under this label, actions which should only be considered manslaughter, in light of the lower degree of criminal culpability possessed by their perpetrators. In other words, it is n ot always fair to equate foresight of a virtually certain result with intention. Let us now look at the reforms to the doctrine of direct intention, which have been proposed by the Law Commission in their Report on Homicide11, and assess to what extent these reform might in reality serve to correct the current inadequaciesIn this Report, the Law Commission make two different reform proposals the first of these is to create a statutory definition of intention which avoids the problems of indirect intention being construed too widely by a jury the second is to codify the existing common law doctrine of indirect intention, but to modify it so that the current problems of indirect intention can be avoided. two of these proposals are therefore designed to rectify the problem of indirect intention being construed too widely, whilst at the same time allowing this doctrine to continue its prosecution of indiscriminate malice as murder where appropriate. The rule behind both of these alte rnative proposals is to rectify the distinction which can, in exceptional cases, exist between intention, in its natural form, and intention implied by reasonable foreseeability/ virtual certainty. They reform proposals recognise that it is possible for an offender to have not intended a particular outcome, even though he or she may have realised that such an outcome was a virtually certain consequence of their actions. This is commonly known as the Woolin12 problem.Under the first proposal, the Commission have state that It is crucial that a statutory definition of intention should not cause injustice, or absurdity, by deeming certain conduct to be intended when the peck collection it to be otherwise13. Thus, under this first proposal, the Commission propose to insert a proviso into a statutory definition of intention, i.e. A person is not to be deemed to have intended any result, which it was his or her specific purpose to avoid.14 This should not be seen as reinserting a motive assessment into that of intention, but rather to provide a means by which a jury will not be forced to convict someone of murder, in an exceptional case where that offender specifically did not intend to cause death even though he knew it would almost certainly result from his actions.Under the second proposal, the Commission kindle a codification of the current doctrine of intention, modified to take account of those exceptional cases where it would be below the belt to equate foresight of a virtually certain result with intention, might be as follows. Such a formulation might read as follows(1) A person is to be regarded as performing 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 counselling 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 so me unforeseen intervention) as a result of the defendants actions and that the defendant appreciated that such was the case.(3) In any case where the defendants 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 chase 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.15This would have the effect of maintaining the current law in relation to virtual certainty, which as Lord Steyn pointed out in Woolin, has over a level of 12 years since Nedrick apparently caused no practical difficulties,16 whilst at the same time, limiting the doctrine of indirect intention so as to exclude those situations where an offender might have seen death as being virtually certain, but where he specifically tried to avoid it. This proposal purports to do th is by providing the jury with more specific guidelines as to when they are entitled to infer indirect intention.Both of these reform proposals are encouraging it would seem that the Law Commission is heading in the right direction at last. The first proposal specifically precludes the Woolin problem with the insertion of a provision which, although purportedly reintroducing a motive section to the doctrine of intention, can actually be used to ensure that intention is not implied where it would be unfair to do so. The second is less specific, but purports to achieve the same ends by clarifying the necessary circumstances in which indirect intention should be implied.In conclusion, I would favour the first proposal for the following reason the second proposal will only slightly modify the doctrine of indirect intention, and will only slightly limit its scope. The proviso contained in the first proposal however, is, as yet, unlimited in its scope, and as such, can be used by a jury t o greater effect. This may have the result of reverse injustice, i.e. offenders who should morally be guilty of murder escaping this label for the lesser conviction of manslaughter, but I feel that it will so significantly decrease the chances of the reverse occurring, i.e. offenders who should only be engraft guilty of manslaughter being labeled as a murderers, that such a risk is justified subsequently all, it is more important to encourage this latter phenomenon than it is to prevent the former from occurring at all costs, especially in light of the huge sentences which are imposed on those offenders convicted for the crime of murder.BibliographyLaw Commission&aposs Consultation Paper Homicide (No.177, 2005)Nathan Committee Report, Report of the House of Lords Select Committee on Murder and Life Imprisonment (HL paper 78-1, 1989).A Ashworth, Principles of Criminal Law (4th ed 2003)A Norrie, Subjectivism, Objectivism, and the Limits of Criminal Recklessness (1992) 12 OJLS 45.A P Simester, Why Distinguish Intention from Foresight? in A P Simester and A T H Smith, Harm and Culpability (1996) 71.Williams, G. (1955) The definition of Crime Current Legal Problems 8, 107-30Smith, A. H. (2004) &aposCriminal Law The future tense&apos Criminal Law Review, Dec, 971-801Footnotes1 A definition provided by the Oxford English Dictionary.2 See Lord degree Celsiuss classic definition involving malice aforethought.3 Law Commission Report Homicide No.177 2005 paratrooper 4.64 Ibid, para 4.65 1986 (83) Cr App R 2676 ibid7 1999 1 AC 82.8 1999 1 AC 82, at 969 Lord Goff in the Nathan Committee Report, Report of the House of Lords Select Committee on Murder and Life Imprisonment (HL paper 78-1, 1989).10 In the statement at the top of this paper, A. Norrie states &aposThe Law Commission&aposs review of the law of intention confirms the viewthat indirect intention is morally over-inclusive, failing to differentiate culpable and non-culpable acts.&apos (Norrie 2006)11 Report N o. 177 200512 In this case, D had a grudge against a woman and had threatened to burn her out. One night he poured paraffin through her letterbox and set it alight. One of the women dies in the fire. When asked why he did it, he replied to wake her up and frighten her. Here, he did not intend to kill the womans but the question is therefore whether or not he saw such a result as virtually certain.13 Ibid, para 4.4214 Ibid, para 4.5015 Report No. 177 2005 para 4.69161999 1 AC 82. at 94