Intention (criminal law)

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In criminal law, intent is a subjective state of mind that must accompany the acts of certain crimes to constitute a violation. A more formal, generally synonymous legal term is scienter: intent or knowledge of wrongdoing.



Intent is defined in law by the ruling in R v Mohan ([1976] QB 1) 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,[ citation needed ] 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. [1]

A person intends a consequence when they 1) foresee that it will happen if their given series of acts or omissions continue, and 2) desire 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.

The test of intent

The policy issue for those who administer the criminal justice system is that, when planning their actions, people may be aware of many probable and possible consequences. So the decision to continue with the current plan means that all the foreseen consequences are to some extent intentional, i.e. within and not against the scope of each person's intent.

For example, A, a jealous wife, discovers that her husband is having a sexual affair with B. Wishing only to drive B away from the neighbourhood, she goes to B's house one night, pours petrol on and sets fire to the front door. B dies in the resulting fire. A is shocked and horrified. It did not occur to her that B might be physically in danger and there was no conscious plan in her mind to injure B when the fire began. But when A's behaviour is analysed, B's death must be intentional. If A had genuinely wished to avoid any possibility of injury to B, she would not have started the fire. Or, if verbally warning B to leave was not an option, she should have waited until B was seen to leave the house before starting the fire. As it was, she waited until night when it was more likely that B would be at home and there would be fewer people around to raise the alarm. Whereas intent would be less if A had set fire to the house during the day after ringing the doorbell to check no one was home and then immediately ringing the fire brigade to report the fire.

On a purely subjective basis, A intended to render B's house uninhabitable, so a reasonably substantial fire was required. The reasonable person would have foreseen a probability that people would be exposed to the risk of injury. Anyone in the house, neighbours, people passing by, and members of the fire service would all be in danger. The court therefore assesses the degree of probability that B or any other person might be in the house at that time of the night. The more certain the reasonable person would have been, the more justifiable it is to impute sufficient desire to convert what would otherwise only have been recklessness into intent to constitute the offence of murder. But if the degree of probability is lower, the court finds only recklessness proved. Some states once had a rule that a death that occurred during commission of a felony automatically imputed sufficient mens rea for murder. (See felony murder). This rule has been mostly abolished, and direct evidence of the required mental components is now required. Thus, the courts of most states use a hybrid test of intent, combining both subjective and objective elements, for each offence changed.

In English law, s8 Criminal Justice Act 1967 provides the frame of which the 'mens rea' is assessed. It states:

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.

Under s8(b) therefore, the jury is allowed a wide latitude in applying a hybrid test to impute intent or foresight (for the purposes of recklessness) on the basis of all the evidence. See Intention in English law.

The 9 Panel Justices Held in United States of America vs Elonis (on Certiorari 2015),(Certiorari appeal denied 2017), that Negligence/Recklessness is not sufficient for a conviction of speech. There must be a culpable mental state and being accepting of the mens rea to hold a conviction.

Offences of basic and of specific intent

In some states, a distinction is made between an offence of basic (sometimes termed "general") intent and an offence of specific intent.

  1. Offences requiring basic intent specify a mens rea element that is no more than the intentional or reckless commission of the actus reus. The actor either knew (intended) or deliberately closed his mind to the risk (recklessness) that his action (actus reus) would result in the harm suffered by the victim. The crime of battery, for example, only requires the basic intent that the actor knew or should have known that his action would lead to harmful contact with the victim.
  2. A limited number of offences are defined to require a further element in addition to basic intent, and this additional element is termed specific intent. There are two classes of such offences:
(a) Some legislatures decide that particular criminal offences 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 offences 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 offences 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 offence, 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 offence at some time in the future, a clear subjective intent to cause the actus reus of the full offence 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 offence, the accused may change their mind and not continue. Hence, this specific intent must also be demonstrated on a subjective basis.

At times a forensic psychiatric examination may be helpful in ascertaining the presence or absence of mens rea in crimes which require specific intent. [2]

Direct intent and oblique intent

Direct intent: a person has direct intent when they intend a particular consequence of their act.

Oblique intent: the person has oblique intent when the event is a natural consequence of a voluntary act and they foresee it as such. The 'natural consequence' definition was replaced in R v Woollin with the 'virtually certain' test. A person is now held to intend a consequence (obliquely) when that consequence is a virtually certain consequence of their action, and they knew it to be a virtually certain consequence. The first leg of this test has been condemned as unnecessary: [3] a person should be held as intending a consequence if (s)he believed it to be a virtually certain consequence, regardless of whether it was in fact virtually certain.

This has two applications:

  1. When a person is planning to achieve a given consequence, there may be several intermediate steps that have to be taken before the full result as desired is achieved. It is not open to the accused to pick and choose which of these steps are or are not intended. The accused is taken to intend to accomplish all outcomes necessary to the overall plan. For example, if A wishes to claim on B's life insurance policy, and so shoots at B who is sitting in a bus, the bullet may have to pass through a window. Thus, even though A may not have desired B's death, it was an inevitable precondition to a claim. Similarly, he may never consciously have considered the damage to the window, but both the murder and the damage under the Criminal Damage Act 1971 are intended. This is distinguishing between the direct intent, which is the main aim of the planand the oblique intent, which covers all intermediate steps. More generally, someone directly intends a consequence when their purpose or aim is to cause it, even though they believe the likelihood of success is remote. In R v Dadson, for example, the defendant shot at a man he wrongly believed was out of range. In R v Mohan, [4] the court held that direct intent means, "aim or purpose"—"a decision to bring about, insofar as it lies within the accused's power, the commission of the matter whether the accused desired that consequence of his act or not."
  2. Sometimes, by accident, a plan miscarries and the accused achieves one or more unintended consequence. In this situation, the accused is taken to have intended all of the additional consequences that flow naturally from the original plan. This is tested as matters of causation and concurrence, i.e. whether the given consequences were reasonably foreseeable, there is no novus actus interveniens and the relevant mens rea elements were formed before all of the actus reus components were completed.

Unconditional intent and conditional intent

Unconditional Intent: a person’s expected result from the consequence of their actions.

Conditional Intent: a person’s expected result only when a condition diverts the person from their unconditional intent.

For example, a couple is planning to have an outdoor wedding, but they also reserved an indoor facility in the unlikely condition of bad weather. The unconditional intent is to have the wedding outside. The conditional intent is to have the wedding inside on the condition of bad weather.

In Holloway v. United States , the United States Supreme Court held that the word ‘intent’ within a federal statute could mean either a person’s “unconditional intent”, “conditional intent” or both depending on context and the congressional purpose of the statute. [5]

Holloway was charged and convicted with the federal crime of Carjacking “with the intent to cause death or serious bodily harm". Holloway admitted to carjacking at gunpoint but argued he only intended to use his weapon “if any of the drivers had given him a hard time". The unconditional intent was to carjack without harm to the driver. The conditional intent was to carjack and cause harm to the driver if the driver became uncooperative.

The issue of this case was whether the statute's phrase, "with the intent to cause death or serious bodily harm" applies to a defendant’s unconditional intent or conditional intent. The Court found that although the construction of the phrase suggests that Congress meant to provide “a federal penalty for only those carjackings in which the offender actually attempted to harm or kill the driver…that a commonsense reading of the carjacking statute counsels that Congress intended to criminalize a broader scope of conduct than attempts to assault or kill in the course of automobile robberies”. [6] The Court, therefore, affirmed Holloway’s conviction and held that a defendant’s conditional intent may violate a federal crime depending on the context and purpose of the statute.

Purpose intent and knowledge intent

In many situations in the United States, a person is considered to have acted with intent if the definitions of purpose and/or knowledge are satisfied. In other situations (especially regarding specific intent crimes that have "with intent to" in their definition), intent may be considered to refer to purpose only. Quite arguably, the most influential legal definitions of purpose and knowledge come from the Model Penal Code's definitions of mens rea.

See also


  1. Homicide: Legal Aspects, 2 Encyclopedia of Crime and Justice 858, 859 (1983); Lloyd Weinreb
  2. Bursztajn HJ, Scherr AE, Brodsky A. The rebirth of forensic psychiatry in light of recent historical trends in criminal responsibility . Psychiat Clinics N Am. 1994; 17:611-635.
  3. Simester and Sullivan, Criminal Law
  4. R v Mohan (1975) 2 All ER 193
  5. "Holloway v. United States, 526 US 1 (1999)". Google Scholar. Retrieved 2015-01-02.
  6. "Holloway at 7".

Related Research Articles

Mens rea is the mental element of a person's intention to commit a crime; or knowledge that one's action or lack of action would cause a crime to be committed. It is a necessary element of many crimes.

Actus reus, sometimes called the external element or the objective element of a crime, is the Latin term for the "guilty act" which, when proved beyond a reasonable doubt in combination with the mens rea, "guilty mind", produces criminal liability in the common law−based criminal law jurisdictions of England and Wales, Canada, Australia, India, Kenya, Pakistan, Philippines, South Africa, New Zealand, Scotland, Nigeria, Ghana, Ireland, Israel and the United States of America. In the United States, some crimes also require proof of an attendant circumstance.

In criminal law, the intoxication defense is a defense by which a defendant may claim diminished responsibility on the basis of substance intoxication. Where a crime requires a certain mental state to break the law, those under the influence of an intoxicating substance may be considered to have reduced liability for their actions. With regard to punishment, intoxication may be a mitigating factor that decreases a prison or jail sentence. Numerous factors affect the applicability of the defense.

In criminal law, criminal negligence is a surrogate mens rea required to constitute a conventional as opposed to strict liability offense. It is not, strictly speaking, a mens rea because it refers to an objective standard of behaviour expected of the defendant and does not refer to their mental state.

An attempt to commit a crime occurs if a criminal has an intent to commit a crime and takes a substantial step toward completing the crime, but for reasons not intended by the criminal, the final resulting crime does not occur. Attempt to commit a particular crime is a crime, usually considered to be of the same or lesser gravity as the particular crime attempted. Attempt is a type of inchoate crime, a crime that is not fully developed. The crime of attempt has two elements, intent and some conduct toward completion of the crime.

In criminal law and in the law of tort, recklessness may be defined as the state of mind where a person deliberately and unjustifiably pursues a course of action while consciously disregarding any risks flowing from such action. Recklessness is less culpable than intentional wickedness, but is more blameworthy than careless behaviour.

In English criminal law, intention is one of the types of mens rea that, when accompanied by an actus reus, constitutes a crime.

Complicity is the participation in a completed criminal act of an accomplice, a partner in the crime who aids or encourages (abets) other perpetrators of that crime, and who shared with them an intent to act to complete the crime. A person is an accomplice of another person in the commission of a crime if they purpose the completion of a crime, and toward that end, if that person solicits or encourages the other person, or aids or attempts to aid in planning or committing the crime, or has legal duty to prevent that crime but fails to properly make an effort to prevent it.

Manslaughter is a common law legal term for homicide considered by law as less culpable than murder. The distinction between murder and manslaughter is sometimes said to have first been made by the ancient Athenian lawmaker Draco in the 7th century BC.

<i>DPP v Majewski</i>

DPP v Majewski [1976] UKHL 2 is a leading English criminal law case, establishing that voluntary intoxication such as by drugs or alcohol is no defence to crimes requiring only basic intent. The mens rea requirement is satisfied by the reckless behaviour of intoxicating oneself.

Crimes Act 1900

The Crimes Act 1900, is a New South Wales statute that sets out the majority of criminal offences for the state of New South Wales in Australia. Along with the Crimes Act 1914, and the Federal Criminal Code Act 1995, these three pieces of legislation form the majority of criminal law for New South Wales.

English criminal law legal system of England and Wales relating to crime

English criminal law concerns offences, their prevention and the consequences, in England and Wales. Criminal conduct is considered to be a wrong against the whole of a community, rather than just the private individuals affected. The state, in addition to certain international organisations, has responsibility for crime prevention, for bringing the culprits to justice, and for dealing with convicted offenders. The police, the criminal courts and prisons are all publicly funded services, though the main focus of criminal law concerns the role of the courts, how they apply criminal statutes and common law, and why some forms of behaviour are considered criminal. The fundamentals of a crime are a guilty act and a guilty mental state. The traditional view is that moral culpability requires that a defendant should have recognised or intended that they were acting wrongly, although in modern regulation a large number of offences relating to road traffic, environmental damage, financial services and corporations, create strict liability that can be proven simply by the guilty act.

Under United States law, an element of a crime is one of a set of facts that must all be proven to convict a defendant of a crime. Before a court finds a defendant guilty of a criminal offense, the prosecution must present evidence that, even when opposed by any evidence the defense may choose, is credible and sufficient to prove beyond a reasonable doubt that the defendant committed each element of the particular crime charged. The component parts that make up any particular crime vary depending on the crime.

Holloway v. United States, 526 U.S. 1 (1999), is a United States Supreme Court case in which the court addressed the issue of whether the federal carjacking law applies to crimes committed with the "conditional intent" of harming drivers who refuse a carjacker's demands.

Fault, as a legal term, refers to legal blameworthiness and responsibility in each area of law. It refers to both the actus reus and the mental state of the defendant. The basic principle is that a defendant should be able to contemplate the harm that his actions may cause, and therefore should aim to avoid such actions. Different forms of liability employ different notions of fault, in some there is no need to prove fault, but the absence of it.

Criminal law is the body of law that relates to crime. It proscribes conduct perceived as threatening, harmful, or otherwise endangering to the property, health, safety, and moral welfare of people inclusive of one's self. Most criminal law is established by statute, which is to say that the laws are enacted by a legislature. Criminal law includes the punishment and rehabilitation of people who violate such laws.

In English criminal law, an inchoate offence is an offence relating to a criminal act which has not, or not yet, been committed. The main inchoate offences are attempting to commit; encouraging or assisting crime; and conspiring to commit. Attempts, governed by the Criminal Attempts Act 1981, are defined as situations where an individual who intends to commit an offence does an act which is "more than merely preparatory" in the offence's commission. Traditionally this definition has caused problems, with no firm rule on what constitutes a "more than merely preparatory" act, but broad judicial statements give some guidance. Incitement, on the other hand, is an offence under the common law, and covers situations where an individual encourages another person to engage in activities which will result in a criminal act taking place, and intends for this act to occur. As a criminal activity, incitement had a particularly broad remit, covering "a suggestion, proposal, request, exhortation, gesture, argument, persuasion, inducement, goading or the arousal of cupidity". Incitement was abolished by the Serious Crime Act 2007, but continues in other offences and as the basis of the new offence of "encouraging or assisting" the commission of a crime.

Non-fatal offences against the person, under English law, are generally taken to mean offences which take the form of an attack directed at another person, that do not result in the death of any person. Such offences where death occurs are considered homicide, whilst sexual offences are generally considered separately, since they differ substantially from other offences against the person in theoretical basis and composition. Non-fatal offences against the person mainly derive from the Offences against the Person Act 1861, although no definition of assault or battery is given there.

Encouraging or assisting a crime is itself a crime in English law, by virtue of the Serious Crime Act 2007. It is one of the inchoate offences of English law.

Voluntary intoxication, where a defendant has wilfully consumed drink or drugs before committing acts which constitute the prohibited conduct of an offence, has posed a considerable problem for the English criminal law. There is a correspondence between incidences of drink and crimes of violence, such as assaults and stabbings. Accordingly, there is a debate about the effect of voluntary intoxication on the mental element of crimes, which is often that the defendant foresaw the consequences, or that they intended them.