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INTENTION, AGENCY and CRIMINAL LIABILITY: Contents Philosophy of Action and the Criminal Law

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INTENTION, AGENCY and CRIMINAL LIABILITY: Contents Philosophy of Action and the Criminal Law ·- INTENTION, AGENCY AND CRIMINAL LIABILITY: Contents Philosophy of Action and the Criminal Law Vll~ Preface x T ab le of Cases Xlll R.A.Duff T ab le of Statutes XlV Abbreviations ,1 ·1 INTRODUCTION 1 1.1 Cases and Questions 7 1.2 Actus Reus and Mens Rea PARTI INTENTION AND AGENCY 15 2 LEGAL CONCEPTIONS OF INTENTION 15 2.1 The Meaning of Intention 27 ·2.2 Proving Intention 31 2.3 Why Define Intention? 38 3 INTENTION IN ACTION - A PARADIGM 38 3.1 Preliminari es H 3.2 Intention, Bare lntention and Decision 47 3.3 lntention and Reasons for Action 52 3.4 Intention and Desire I 55 3.5 lntention, Desire and Belief I 58 3.6 Intention, Desire and Belief II 63 3.7 Intention, Success and Causation 66 3.8 Intention and Desire II 74 4 INTENTION, FORESIGHT ANO RESPONSIBILITY 74 4.1 Direct and Oblique Intention 76 4.2 Intentional Action and Responsibility 82 Basi! Blackwell 4.3 Aspects of Responsibility V l Contents 4.4 Intention and Circumstances 87 4.5 Individuating Effects 89 4.6 Intentional Agency and Probable Consequences 95 5 COMPETING CONCEPTIONS OF AGENCY 99 5.1 Intention and Responsibility 99 To HGM and V]M 5.2 A Consequentialist View of Responsible Agency 105 5.3 A Non-consequentialist View 111 6 INTENTION, ACTION AND STATES OF MIND 116 6.1 Dualism and the Mental Element in Crime 116 6.2 The Argument from Analogy 120 6.3 Actions and 'Colourless Movements' 123 6.4 Identifying Mental States 127 6.5 An Alternative View 129 PARTII SUBJECTIVE AND OBJECTIVE 7 RECKLESSNESS 139 7 .l Extending the Paradigms 139 7.2 Recklessness in the Criminal Law 142 7.3 'Subjectivism' and 'Objectivism' 149 7.4 'The Thought Never Crossed My Mind' 157 7.5 'I Thought She Was Consenting' 167 7.6 Implied Malice and Murder 173 8 CRIMINAL ATTEMPTS 180 8.1 lntroduction 180 8.2 The Significance of Failure 184 8.3 The Mens Rea of Attempts 1: Subjectivism and the 192 Current Law 8.4 The Mens Rea of Attempts II: Why Attempts should be 199 Intended 8.5 Concluding Remarks 206 Bibliography 207 Index 215 Criminal Att~mpts 181 There are two obvious ways in which a defendant's liability depends, under the law of attempts, on the objective rather than on the purely subjective aspects of her conduct. First, the la w distinguishes attempted from compieteci crimes: if I try to kill someone, and succeed, I am guilty of murder; but if my attempt fails, I 8 am guilty only of attempted murder. This distinction is reflected in the sentencing practice of the courts; while a failed attempt can in theory be punished as severely as the complete offence would be, courts typically Criminal Attempts impose lighter sentences on attempts than they would for the relevant complete offence (and some legai systems make this a formai require­ ment):2 but the distinction depends on the objective aspects of the defen­ 8 .l I ntroduction dant's conduct. The subjective aspects of a failed killing and a successful killing may be the same; each agent tries to kill his victim and believes In chapter 7 I discussed the way in which criminal liability may be that he will succeed. The distinction between them depends on the objec­ extended, beyond the paradigms of intended and intentional agency, to tive fact that in one case the intended result ensues (the victim is killed), cover results which exceed the agent's intentions - results which he neither while in the other it does not (the bullet misses). But that distinction makes intends nor fìrmly expects to bring about, but as to which he is said to be a crucial difference to their criminal liability: one is convicted of murder, reckless. Criminal recklessness should be defìned 'subjectively' (though not and sentenced to life imprisonment; the other is convicted only of attemp­ as orthodox subjectivists defìne it), in terms of the practical indifference to ted murder, and probably receives a lighter sentence. the interests of others which an agent's actions display: that indifference Second, English law defìnes the mens rea of a criminal attempt as an can be shown in his conscious risk-taking, but also in his failure to notice a 'intent' to commit the offence attempted, even when recklessness is suf­ risk which he is creating, or in his unreasonable belief that there is no risk. fìcient mens rea for that complete offence. Either intention or recklessness There is, of course, an 'objective' element in recklessness; for we judge constitutes the mens rea of wounding: but if no wound is actually caused, the agent's conduct in the light of an 'objective' standard of reasonableness. only a defendant who intended to wound is guilty of attempted wounding; But when we turn to the second way in which criminalliability can extend one who acts with a recklessness which would make her guilty of wound­ beyond the paradigms of responsible agency, to cases in which what ing if she caused a wound, but who in fact causes no wound, is not guilty happens falls short of what was intended or expected (see p. 139 above), we even of attempted wounding. The account which I offered of the mens rea fìnd a deeper conflict between the subjectivist claim that liability should be of murder in chapter 7 would have convicted Mrs Hyam of murder, since determined wholly by the subjective aspects of the defendant's conduct, she in fact caused death: but if no o ne had been killed, she would no t have and the objectivist claim that it should depend in part on what 'ol::jectively' been guilty even of attempted murder in English law (although, following happens. This conflict is most striking in the case of criminal attempts. 1 Cawthorne, she would be guilty of attempted murder in Scots law; p. 3 The English law of criminal attempts is laici down in the Criminal above). Two people might thus act with the same kind of recklessness as to Attempts Act 1981: some harm - the subjective character of their actions may be just the same. If, with intent to eommit an offenee ... , a person does an aet whieh is more But if one actually causes that harm, while the other does not, that than merely preparatory to the eommission of the offenee, he is guilty of difference in the objective character of their conduct will make a crucial attempting to eommit the offenee. (s. 1(1)) difference to their criminal liability: one is then guilty of a complete offence (of wounding or murder, for instance), whereas the other is not l See generally, S&H, pp. 287-306; TCL, eh. 17; C&K, pp. 351-92; E&W, pp. even guilty of attempting to commit that offence. 303-31; Gordon, pp. 163-98; A.J. Ashworth, 'Cri minai attempts an d the role of resulting harm'; G. Fleteher, Rethinking Criminal Law, eh. 3.3-4; L.C. Beeker, 2 See Criminal Attempts Aet 1981, s. 4(1); California Penai Code, s. 664; C&K, 'Criminal attempt and the theory of the law of erimes'; H. Gross, A Theory of pp. 353-4; R. Cross and A.]. Ashworth, The English Sentencing System, pp. Criminal justice, pp. 127-35. 151-7. 182 Subjective and Objective Criminal Attempts 183 This chapter is concerned with these two features of the law of attempts. Second, tbere is tbe problem of 'impossible attempts'.5 A woman buys Should the law make criminal liability depend in these ways on the obJeC­ what sbe believes is a stolen video-recorder (Anderton v Ryan). If tbat tive character of the defendant's conduct (on what actually happens), rather belief is true, she is guilty of handling stolen goods: but if the recorder has than o n its subjective character (o n the intentions, beliefs an d practical no t been stolen, is she guilty of attempting to han d! e stolen goods? O n the attitudes which it displays)? one band, since sbe believed tbat tbe recorder bad been stolen, sbe intended I shall not discuss the issue of why we should have a generai law of 'to handle stolen goods' (see pp. 88-9 above). Had tbe recorder actually attempts at a!V nor the problems involved in defining the actus reus ~f a been stolen that intention would suffice to convict ber not only of baqdling criminal attempt: but I should comment briefly o n two otber issues wb1cb, stolen goods if sbe compieteci her purcbase, but of attempted bandling if althougb tbey are closely related to the topics of tbis cbapter, l cannot sbe failed to complete it: so surely it sbould convict ber of attempted discuss in detail bere. handling even if the recorder was not in fact stolen. But, on the other hand, First, the 1981 Act apparently required an 'intent' as to every element of it was no part of ber purpose to buy stolen goods - the fact that the the actus reus of the complete offence: a man who tries to have sexual recorder had not been stolen did not rerider her action a failure. But if her intercourse with a woman who does not in fact consent to it is tbus guilty compieteci purchase of this (non-stolen) recorder tbus marked tbe success of attempted rape only if he acts intentionally or witb intent as to her lack of her intended enterprise, we surely cannot say that she 'attempted' to of consent (realizing tbat she does not, or intending tbat sbe should not, handle stolen goods: for there was no such handling which sbe tried, an d consent); be is no t gui!ty if be acts only with su cb reckl~ssness as to her failed, to acbieve.
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