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  • Intention (criminal law)

    Intention (criminal law)


    • In criminal law, intent is one of three general classes of mens rea necessary to constitute a conventional, as opposed to strict liability, crime. A more formal, generally synonymous legal term is scienter: intent or knowledge of wrongdoing.

      Intent is defined in Canadian law by the ruling in R v Mohan (1994) as "the decision to bring about a prohibited consequence."

      A range of words represents shades of intent in criminal laws around the world. The mental element, or mens rea, of murder, for example, is traditionally expressed as malice aforethought, and the interpretations of malice, "maliciously" and "willful" vary between pure intent and recklessness or negligence, depending on the jurisdiction in which the crime was committed and the seriousness of the offence. The intent element of a crime, such as intent to kill, may exist without a malicious motive, or even with a benevolent motive, such as in the case of euthanasia.

      A person intends a consequence they foresee that it will happen if the given series of acts or omissions continue, and desires it to happen. The most serious level of culpability, justifying the most serious levels of punishment, is achieved when both these components are actually present in the accused's mind (a "subjective" test). A person who plans and executes a crime is considered, rightly or wrongly, a more serious danger to the public than one who acts spontaneously (perhaps because they are less likely to get caught), whether out of the sudden opportunity to steal, or out of anger to injure another. But intent can also come from the common law viewpoint as well.



      A court or jury, in determining whether a person has committed an offence,
      (a) shall not be bound in law to infer that he intended or foresaw a result of his actions by reasons only of its being a natural and probable consequence of those actions; but
      (b) shall decide whether he did intend or foresee that result by reference to all the evidence, drawing such inferences from the evidence as appear proper in the circumstances.
      (a) shall not be bound in law to infer that he intended or foresaw a result of his actions by reasons only of its being a natural and probable consequence of those actions; but
      (b) shall decide whether he did intend or foresee that result by reference to all the evidence, drawing such inferences from the evidence as appear proper in the circumstances.
      (a) Some legislatures decide that particular criminal offenses are sufficiently serious that the mens rea requirement must be drafted to demonstrate more precisely where the fault lies. Thus, in addition to the conventional mens rea of intent or recklessness, a further or additional element is required. For example, in English law, s18 Offences against the Person Act 1861 defines the actus reus as causing grievous bodily harm but requires that this be performed:
      1. unlawfully and maliciously – the modern interpretation of "malice" for these purposes is either intent or recklessness, "unlawfully" means without some lawful excuse (such as self-defense); and with
      2. the intent either to cause grievous bodily harm or to resist lawful arrest.
      The rule in cases involving such offenses is that the basic element can be proved in the usual way, but the element of specific intent must be shown using a more subjective than objective test so that the legislature's express requirement can be seen to be satisfied.
      (b) The inchoate offenses such as attempt and conspiracy require specific intent in a slightly different sense. The rationale for the existence of criminal laws is as a deterrent to those who represent a danger to society. If an accused has actually committed the full offense, the reality of the danger has been demonstrated. But, where the commission of the actus reus is in the future and the accused is merely acting in anticipation of committing the full offense at some time in the future, a clear subjective intent to cause the actus reus of the full offense must be demonstrated. Without this specific intent, there is insufficient evidence that the accused is the clear danger as feared because, at any time before the commission of the full offense, the accused may change their mind and not continue. Hence, this specific intent must also be demonstrated on a subjective basis.
      (a) Some legislatures decide that particular criminal offenses are sufficiently serious that the mens rea requirement must be drafted to demonstrate more precisely where the fault lies. Thus, in addition to the conventional mens rea of intent or recklessness, a further or additional element is required. For example, in English law, s18 Offences against the Person Act 1861 defines the actus reus as causing grievous bodily harm but requires that this be performed:
      1. unlawfully and maliciously – the modern interpretation of "malice" for these purposes is either intent or recklessness, "unlawfully" means without some lawful excuse (such as self-defense); and with
      2. the intent either to cause grievous bodily harm or to resist lawful arrest.
      The rule in cases involving such offenses is that the basic element can be proved in the usual way, but the element of specific intent must be shown using a more subjective than objective test so that the legislature's express requirement can be seen to be satisfied.
      (b) The inchoate offenses such as attempt and conspiracy require specific intent in a slightly different sense. The rationale for the existence of criminal laws is as a deterrent to those who represent a danger to society. If an accused has actually committed the full offense, the reality of the danger has been demonstrated. But, where the commission of the actus reus is in the future and the accused is merely acting in anticipation of committing the full offense at some time in the future, a clear subjective intent to cause the actus reus of the full offense must be demonstrated. Without this specific intent, there is insufficient evidence that the accused is the clear danger as feared because, at any time before the commission of the full offense, the accused may change their mind and not continue. Hence, this specific intent must also be demonstrated on a subjective basis.
      • Lacey. A Clear Concept of Intention: Elusive or Illusory, (1993) 56 MLR 621.
      • Norrie. After Woollin (1999) CLR 532.
      • Williams, Glanville. Oblique Intention, (1987) Cambridge Law Journal 417
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