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Published online by Cambridge University Press: 02 January 2018
In this article I wish to deal with a problem about the analysis of intention in criminal law. The issue I want to take up has arisen primarily in the context of theft and theft-related offences. However, there is no reason to suppose that it is a problem confined to theft. It could arise in any area of the criminal law which involves intention as constitutive of mens rea.
The general problem can be stated very briefly. How is the law to deal with an accused who intended to perform some act which, if performed with simple intention, would be an offence, when he intended to perform that act only if some contingency occurred? The case law on theft demonstrates that, far from being an arcane question, this is a live issue. This is for the simple reason that a great many intentions are intentions of this conditional nature.
1. I am grateful to members of the Department of Philosophy at the University of Essex, and particularly to Dr David Smith, for a number of helpful comments on an earlier version of this paper.
2. It is also not my aim to analyse the concept of intention itself. So I shall not say anything about whether intentions should be seen as dispositions, beliefs, judgments, or whatever.
3. R v Eastom [1971] 2 QB 315.
4. R v Husseyn (1977) 67 Cr App R 131.
5. R v Greenhoff [1979] Crim LR 108.
6. R v Walkington [1979] 1 WLR 1169.
7. Attorney-General's References (No.s 1 & 2 of 1979) [1980] 1 QB 180.
8. Scudder v Barrett, Miles v Clovis [1980] QB 195 (Note). Scudder v Barrett was followed by the Court of Appeal in R v Bayley and Easterbrook [1980] Crim LR 503. The offence of being a suspected person loitering with intent to steal was abolished by s. 8 of the Criminal Attempts Act 1981, so I shall make no further reference to this offence.
9. Strictly speaking, the mens rea of theft and attempted theft is the intention of permanently depriving another of his property. However, for simplicity, I shall, in the rest of the article, refer to the mens rea of all these offences as ‘intention to steal’. It will have been seen that the unspecific indictment doctrine has been applied by judicial decision to all these offences, except, to the best of my knowledge, theft itself, the application of the doctrine to which rests only on the obiter dicta in the Attorney-General's References. For doubts that it is possible to apply it to theft see JC Smith, Commentary on R v Bayley and Easterbrook [1980] Crim LR 503.
10. Notably Glanville Williams, ‘Intent to Steal and the Impossibility Rule’, (1979) 129 NLJ 1167. In this article I shall ignore the compounding of problems which occurs when the case is also one of ‘impossibility’ as conceived by the House of Lords in Haughton v Smith [1975] AC 476. It is true that in some of the cases we are considering the condition in the intention was not satisfied, and it may be suspected that, on the House of Lords ‘impossibility’ doctrine, they would have been characterised as ‘attempting the impossible’. However, not all the cases are ones of attempt, and in some of them (e.g. Husseyn) it appears that the condition was satisfied. So the unspecific indictment doctrine is not just another aspect of impossible attempts, but an independent problem. For penetrating criticism of the decision of the House of Lords in Haughton v Smith see Hart, H.L.A., ‘The House of Lords on attempting the impossible’, in Tapper, C.F.H., ed. Crime, Proof and Punishment: Essays in Memory of sir Rupert Cross, (Landon, 1981) pp. 1–20 Google Scholar, It is to be hoped that the Criminal Attempts Act 1981 has now dissolved problems of ‘impossibility’.
11. I am taking ‘has a settled intention’ and ‘has a formed intention’ as truth-conditionally equivalent to ‘has an intention’. It is true that we can say of someone that they have no settled or no formed intention. But we cannot, I think, say of someone that they have an unsettled or an unformed intention. This seems to me to suggest that ‘settled’ and ‘formed’ when they precede ‘intention’ do not in fact qualify the intention but emphasise its existence.
12. (1978) 67 Cr App R 131, 132.
13. [1978] AC 979, 1000.
14. Quoted in the Attorney-General's References [1980] 1 QB 180, 186.
15. It might be argued that the property in this case is specific and identifiable in the mind of the accused at least to the extent that he intends to steal that object which he sees in front of him. But if that alone is sufficient to make an object specific and identifiable then this category also includes many of the cases which the Commission wished to classify as ones of conditional intention, for in many of them the accused formed the intention of stealing what he saw in front of him if, on examination, it proved worth stealing.
16. The distinction between having no formed intention of doing something and intending not to do it is often blurred by English usage. We tend to say ‘I do not intend to A’ to mean ‘1 intend to not-A’, i.e. ‘I intend to refrain from A-ing’. Nevertheless, the two positions are conceptually quite distinct.
17. The distinction between the two types of relation is well drawn in J.W. Meiland, The Nature of Intention, (London, 1970) pp. 15–34.
18. Compare Meiland, op. cit. 33, who seems to deny this.
19. Parry, ‘Conditional Intention: a Dissent’ [1981]Crim LR6,7. For present purposes I shall draw no distinction between forming an intention to do something and deciding to do it. Parry's discussion is so loosely formulated that the following attribution of views can only be tentative.
20. None of this is, of course, to deny that what makes an item worth stealing for an agent may depend on circumstances peculiar to that agent.
21. Parry [1981] Crim LR 6, 8–9.
22. Koffman ‘Conditional Intention to Steal’, [1980] Crim LR 463, 465.
23. This is perfectly compatible with forming an intention subject to a condition and the condition's being instantiated in a way which had not occurred to one.
24. It is worth mentioning at this point that it might be suggested that there is a necessary connection between an intention's being weak or strong and its being correspondingly, conditional or unconditional. But I do not think this is correct. The strength of an intention is inversely related to the likelihood of the agent's changing his mind about doing that which he intends. This means that an intention can be conditionally highly qualified and yet very strong, and vice versa. I could now form the intention that if someone were to offer me a highly paid temporary job in California, if I had no family ties to prevent me going, if 1 had the time, and if it were not too far away from my position, I should definitely go to Disneyland. Such an intention would be conditionally highly qualified, and the contingencies referred to in its conditions might be very remote, yet it could be a very strong intention, in that if the contingencies were to be fulfilled little would dissuade me from going to Disneyland. Conversely, an intention can be formed unconditionally and yet be very weak.
25. There are, of course, always dangers about substituting in propositional attitudes. I am assuming only that if the standard view of the logical form of universal propositions is correct then this is validly substitutable in the content of intention even if the agent does not realise that this is the logical form of such propositions. Even if this fairly weak assumption is ill-founded it will make no difference to the main line of argument. For, as we shall see, in formulating the indictment the law does not appear to accord an accused's own description of his intention the status of a privileged description.
26. There is a slight complication in extending it to ‘some’ expressions in that it is not true that the agent must either intend to perform an action in regard to that thing or intend to refrain from performing that action in regard to that thing; for he may have no intention, as regards that action, towards it. But this can be met by adding that there is an intention.
