Intentions Legal and Philosophical: R. A. Duff

Intentions Legal and Philosophical
R. A. DUFF*
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Jurists are interested in intention as a central determinant of criminal liability;
philosophers are interested in intention as a central feature of human action, and as
a key determinant of moral responsibility. One might hope, therefore, that
philosophers could benefit from juristic discussions of the proper legal meaning of
the concept, and jurists from philosophical accounts of the conceptual and moral
structures of its ordinary usage: but many jurists would, I suspect, agree with
Professor Williams that philosophers have in fact offered them 'only limited
assistance'.1
A philosopher who begins from the ordinary, extra-legal concept of intention
must of course be alert to the possibility that, given the law's 'specific require-
ments', the concept's legal meaning should differ from its ordinary meaning [417];
and to the danger that her grasp of those 'specific requirements' may be
inadequate. Unless we are to suppose, however, that 'intention' is simply
ambiguous as between its legal and its extra-legal uses—that there is no significant
relation between them—philosophers may still hope to make a contribution to legal
discussions.
The extent of the connection between legal and extra-legal usage depends on just
what the law's 'specific requirements' are. The most basic of these flows from the
concept's use, in the criminal law, to ascribe criminal liability, and to discriminate
different kinds and degrees of criminal fault. An adequate legal definition of the
term must therefore mark out a distinctive and unitary species of criminal fault,
enabling courts to distinguish such different species of fault as should be
distinguished, and to class together cases between which no categorial distinction
as to fault should be drawn.
Ascriptions of criminal liability should ideally, we may suppose, express justified
moral ascriptions of responsibility and culpability (compare Williams' comments
on 'common sense' and 'outraged public opinion' [423], and on mental stress and
on treason [435-7]).2 This connects the legal to the extra-legal concept of intention,
since the extra-legal concept is typically used to ascribe and discriminate kinds and
degrees of moral responsibility and culpability; and this creates a presumption in
* Department of Philosophy, University of Stirling, Stirling. I am very grateful to Sandra Marshall for her
helpful comments on an ^rrtirr version of this paper.
1
Glanrilk Williams, "Oblique Intention' (1987) 46 CLJ 417. Future bare page references are to this article, which
articulates a common juristic conception of the mining and signifkimr of intention.
2
For two (out of many) relevant judicial comments, see Hyam [1975] AC 44, at 78C-D (Lord Hailsham); Caldvxll
[1982] AC 341, at 352C (Lord Diplock).
c
Oxford University Press 1989 Oxford Journal of Legal Studies Vol. 9, No. 1
SPRING 1989 Intentions Legal and Phibsophical 77
favour of giving the legal concept the same meaning as the extra-legal concept, and
makes philosophical accounts of its ordinary meaning relevant to discussions of its
proper legal meaning If such accounts are to be relevant, however, they must look
behind the surface features of the concept's ordinary usage, to show how those
surface features are related to ascriptions and discriminations of moral

responsibility.
Of course, even if legal ascriptions of criminal liability should ideally match
moral ascriptions of culpable responsibility, the law has other purposes and other
requirements which might conflict with that ideal aim. In particular, legal
definitions and doctrines must be practicable: they must be intelligible to the
judges, lawyers, jurors and citizens who have to apply them; they must not create
an impossible burden of proof or disproof. Any ordinary language concept will
satisfy these requirements to some degree; ordinary language users will be able to
understand it and to apply it with reasonable certainty in particular cases. But the
legal process is subject to special constraints (the rules of evidence, the need for
proof beyond reasonable doubt) which may sometimes make ordinary concepts
inapt for the law's purposes. We cannot determine in advance whether or when this
will be so: but we should anyway begin by looking for ideal definitions which will
make just those distinctions and classifications which the law should ideally make;
only then should we ask whether and how these ideal definitions must be modified
for the sake of practicability.
The most obvious contribution which a philosopher can make is at the level of
ideal theory: how should the law ideally define and classify offences if it is to
achieve its proper aims; how should its central concepts ideally be defined? But the
proof of this, as of any, pudding is in the eating; and Williams believes that we have
not in fact made any significant contribution to the resolution of legal problems
about the meaning of 'intention'.
Williams and I agree that the law should sometimes distinguish 'direct' from
'oblique' intention, and require a direct intention for criminal liability. We agree
that one way to capture this distinction is by 'the test of failure': an effect is directly
intended only if its non-occurrence would mark the (partial) failure of the agent's
action.3 We disagree about just how each kind of intention should be defined and
distinguished; and, more crucially, about the kinds of case in which criminal
liability should require a direct intention. I cannot discuss all Williams' points
here: but I will try to meet some of his criticisms, and to sketch the grounds for an
argument that direct intention should play a larger role than he allows.
Direct Intention and Desire

Williams accuses those who deny that direct intention should be defined in terms of
'desire' of an error which should be 'too obvious to need stating5 [418]. That error
would indeed be committed by one who flatly denied that direct intention could be
' See Williams 425; Duff, 'Intention, Meni Rea and the Law Commission Report' [1980] Crim LR 147, at 150-51;
J. E. Stannard, 'Mens Rea in the MeWng Pot* (1986) 37 NILQ 61, at 69.
78 Oxford Journal of Legal Studies VOL. 9
said to involve desire: for there is a broad philosophical use of 'desire', and a
comparably broad ordinary use of 'want', such that I do necessarily desire or want
whatever I intend. It would indeed be quite natural to say that I want to visit the
dentist: 'I want to go to the dentist at 4 o'clock', I say when you ask me what I want
to do today. 4 I wrongly implied, in the passage cited by Williams, that only

philosophers use 'want' thus: but my objections to defining direct intention in
terms of 'want' or 'desire' still stand.5
First, there is an equally familiar and narrower ordinary usage of these terms in
which we contrast what we want with what we intend: 'I don't want to do X, but
I've got to do it (as a necessary means to my end, as the least available evil, as a
duty)'. If 'intention' is defined in terms of 'desire' or 'want', it will need to be
explained to juries ( and perhaps even to judges) that these terms are being used in
their broadest sense; and there is a danger that juries (and perhaps even judges)
might confuse the two uses of these terms, and wonder whether an effect which is
not 'wanted' in the narrower sense is intended. When we are told that intention is
'quite distinct from . . . desire', 6 or that it involves 'a decision to bring about. . .
the commission of the offence . . . no matter whether the accused desired that
consequence of his act or not', 7 it is not clear whether we are being reminded that a
direct intention need not involve desire in the narrow sense of that term; or that in
law I am taken to intend the obliquely as well as the directly intended effects of my
actions.
Second, the necessary truth that I want or desire whatever I directly intend is
also an empty truism: it does not specify an independent criterion for the
conclusion that the agent intends the desired or wanted result; it rather marks an
implication of the logically prior finding that he intends it. We do not realize that
an agent intends a result by realizing that he 'desires' it in this broad sense; we say
that he desires it because we realize that he intends it. If a legal definition of
'intention' is to specify the conditions or criteria by reference to which courts may
find that an agent intended a result, a definition in terms of 'desire' or 'want' is thus
unhelpful. We can make matters clearer, and avoid possible confusion, by saying
instead that an agent intends an expected effect of his action if he acts thus in order
to bring that effect about or because he believes that his action will or might have that
effect.
Intentional Agency
Williams, following Bentham, distinguishes direct from oblique intention; I
distinguish intending an effect from bringing it about intentionally (I express the
distinction thus in order to show how the ordinary concept of intention has these
4
See, for inrance, R. Audi, Intending" (1973) 70 JP 387, at 389-92; A. K. W. Hilpin, "Good Intention!1 (1987)
137Af£J696.
5
See Duff, T h e Obscure Intentions of the Home of Lord*' [1986] Crim LR TJX, it 772-4; "Codifying Criminal
Fault' in I. H. Dennis (ed), Criminal Law axdjusnc* (Sweet and Maxwell 1987) 93, at 94-6.
6
Moloney [1985] AC 90S, at 926D (Lord Bridge).
7
Mohan [1976] QB 1, at 11; see J. C. Smith in [1975] Crim LR 284.
SPRING 1989 Intentions Legal and Philosophical 79
'two different shades of meaning',8 which match the two conceptions of intention
in the law).
I directly intend those effects which provide pan of my reason for acting as I do.
I bring about intentionally, not every expected side-effect of my action, but only
those for which I am properly held responsible; and I am properly held responsible

for those which are relevant to my action as providing some reason against it.9 In
moral contexts we may disagree about whether an expected effect is thus relevant
to my action. I know that if I accept a job elsewhere my colleagues will suffer, since
I will not be replaced: I regard this as irrelevant to my decision about the job—the
only considerations to which I think I should attend are those relating to my own
career interests; you might disagree, and argue that I should also attend to the
effect of my decision on my colleagues—that the fact that they will suffer provides
a reason against taking the job. We might agree that I should take the job, since
you might agree that the reasons in favour of taking it are stronger: but we disagree
about what reasons are relevant to my decision, and thus about which foreseen
effects I should be held responsible for, as their intentional agent. You will hold me
(partly) responsible for the harm suffered by my colleagues, and could express this
by saying that I have (intentionally though justifiably) harmed them; I will deny
that I am responsible for that harm as its intentional agent.
Such disagreements are usually irrelevant in law, since the law itself determines
whether an effect is relevant to my action. If I do what I know will cause V to
apprehend immediate personal violence, I cannot simply deny that that effect is
relevant to my action, or that I am responsible for Vs apprehension as its
intentional agent: for by its definition of an assault the law holds me responsible for
that effect, and thus holds that I intentionally cause V's apprehension.10 But the
scope of an agent's responsibilities, and thus of her intentional agency, is
sometimes an issue in law.
This is clearest when liability is based on an omission. If I am to be guilty of
homicide by failing to prevent Vs death, I must have a particular duty of care
toward him.11 Given such a duty of care, I am the intentional agent of his death if I
fail to do what I see to be necessary to prevent it, since I am responsible for that
foreseen effect of my inaction. Without such a duty of care, I am not in law the
intentional agent of his death even if I do not do what I see to be necessary to
prevent it; I am not responsible for his death, since the law does not require me to
attend to that foreseen effect of my inaction. To hold me responsible for his death
is not yet to condemn me, since I may be able to justify my failure to save him (even
if a 'Bad Samaritan' statute imposes a general duty to prevent grave harm to others,
it may be quite easy to justify a failure to prevent such harm, by showing that its
prevention would involve 'unreasonable' risk, cost or inconvenience):12 it is rather
to hold that I fail to save him, and must justify my failure if I am to avoid
• Hyam [1975J AC 55, it 96E (Lord Cross).
' Set Duff, 'Intention, Responsibility tnd Double Effect1 (1982) 32 PQ 1.
10
See Smith & Hogan, Criminal Law (5th edition, Butterworths 1983)351.
11
See Smith & Hogin, op cil 43-4; Liw Commission No. 143 (1985), Draft Criminal Cod* cl 20.
12
See J. Feinberg, Harm to O&m (OUP, New York, 1984) Ch 4.
condemnation; whereas to deny responsibility for his death is to deny that there is a
'failure to save' which requires justification.
Intentional agency as to a foreseen side-effect of an action also sometimes
depends on the scope of the agent's legal responsibilities. In National Coal Board v
Gamble Mr Haslam, the defendant's employee, clearly aided the commission of the

offence of driving an overloaded lorry on the road, by giving the driver the ticket
which allowed him to leave the coal depot.13 He knew that the lorry was
overloaded: but did he 'intend' to aid the commission of the offence? This
depended, for Devlin J, on when the lorry's cargo of coal became the property of
the lorry's owners; Mr Haslam intended to aid the commission of the offence only
if the coal was still the property of the Coal Board when he realized that the lorry
was overloaded.14 Now this could not be relevant to the question of whether he
directly intended to aid the commission of the offence: but Devlin J denied that
aiding and abetting requires such a direct intention.15 He held that only an oblique
intention to aid (an intentional aiding) is required; and the question of when
ownership of the coal passed to the lorry's owners could be relevant to the question
of whether Mr Haslam intentionally aided the commission of the offence.
The fact that my action will, as an expected side-effect, aid the commission of an
offence is one to which the law normally requires me to attend; I am normally held
responsible for such an effect, as its intentional agent. If I sell a gun to someone
who will, I know, use it to commit an offence, I intentionally aid her commission of
that offence, even if I do not act with the direct intention of aiding it; I cannot deny
responsibility for this expected effect of my action, since the law declares that it is
my concern. But this responsibility is limited. If I return a gun to its legal owner at
his request, I do not intentionally aid the commission of the offence which I know
he will commit with it: my responsibility now is simply to give him his property;
what he will do with it is not my concern.16 Thus if the coal became the property of
the lorry's owners before Mr Haslam knew its full weight, his responsibility was
simply to let its new owners' employee remove it; it was not his concern that this
would assist the commission of an offence. But if he knew the lorry to be
overweight when its load was still the Coal Board's property, the fact that by giving
the driver the ticket which transferred ownership of the coal he would aid the
commission of an offence was his concern, and he intentionally aided the
commission of that offence.
A similar issue was raised in Gillick.17 A doctor who prescribes contraceptives
for a 15-year-old girl knows that this will assist or encourage unlawful sexual
intercourse: is she guilty of aiding and abetting that offence, or of 'causing or
encouraging unlawful sexual intercourse' under s.28(l) of the Sexual Offences Act
1956? The House of Lords thought that a doctor who acts on her clinical judgment
" NCB v Gambit [1959] 1 QB 11.
14
Ibid at 20-1.
15
Ibid at 22-4; for a dissenting view, see Slide J it 25-6.
16
See Devlin J's comment (ibid at 20) that to return his own property to another unountx, not to a 'positive' act,
but only to • 'negative' act of 'refraining from detinue'.
17
GtiHdt v Wat Norfolk and Wubtch Ana Health Authority [1986] AC 112.
that the treatment is necessary for 'the maintenance or restoration' of the girl's
health18 lacks the necessary mens rea. Smith argues, however, that since intention
need not involve desire, the doctor does intend to aid or encourage unlawful sexual
intercourse: her defence against a charge of aiding and abetting that offence must
be one of necessity—that it is more important to protect her patient's health than to

avoid assisting unlawful intercourse.19
Smith identifies an 'intention' to aid with intentionally aiding: but the doctor
could deny, not only that she directly intends to aid the commission of that offence,
but also that she intentionally aids its commission. For, she might say, her duty as a
doctor is simply to care for her patient's health: it is not her concern that her
medical treatment will make it easier for her patient to commit an offence; she is
not responsible for, and is thus not the intentional agent of, that foreseen
side-effect of her action (but a shopkeeper who sells contraceptives which will, he
knows, be used for unlawful intercourse might not be able to deny that he
intentionally aids the commission of an offence: lacking the doctor's duty of care,
he is in the same position as the gun-seller). The doctor's claim is clearly arguable;
Mrs Gillick thought that doctors should attend to such side-effects of their actions,
and thus that the doctor does intentionally aid the commission of the offence: but
the point is that a decision about whether she intentionally aids the commission of
the offence must depend on what her responsibilities, as a doctor, are taken to be;
and we could read Gillick as holding that her responsibilities are limited in the way
suggested here.
Borderline Cases
The distinction between an action's directly intended effects and its foreseen
side-effects is not always clear-cut; but some cases in which Williams thinks that
the law should count an obliquely intended effect as 'intended' are actually cases of
direct intention.
To hide the corpse of our accidental victim, intending to conceal his death, is to
intend to prevent its burial.20 Preventing its due burial is an implication, not a
separate side-effect, of our intended concealment, since if his corpse was duly
buried it would follow that we had failed to conceal it as we intended; if the
non-occurrence of an effect entails the failure of the agent's intended action that
effect is at least part of what she intends.
A soldier who fires at a fleeing suspect in order to prevent his escape likewise
directly-.intends to cause him serious injury.21 Such an injury is not a further
consequence of his intended action: for if his shot is to prevent the fugitive's
escape, it must presumably do so by hitting him and injuring him so seriously that
he cannot flee. The soldier directly intends to cause serious injury, as a means of
11
Ibid at 190D-E (Lord Scarman).
19
[1986] Crim LR 114.
20
Himur [1974] QB 95; Williams 419.
21
AaonuyJj%tralforNonJurn Irdmd'i Rtftrenu [1977] AC 105, at 139; Williams n 13.
82 Oxford Journal of Legal Studies VOL.9
preventing escape; his defence must, as Williams points out, be one of justification,
not of lack of intent.
So too, if a surgeon's insertion of the scalpel is a wounding, it is a directly
intended wounding [420]: if we define 'wound' simply in terms of such immediate
physical effects as the skin being broken,22 the surgeon directly intends to wound,

since she directly intends to break the skin in order to operate. To deny that she
directly intends to wound we must argue, not that she only obliquely intends to
wound, but that a lawful surgical operation does not involve a 'wounding': a lawful
surgeon would then neither directly nor obliquely intend to wound (whereas a
surgeon operating unlawfully on a kidnapped patient would still directly intend to
wound).
In Hills v Ellis,23 Mr Hills admitted that he (directly) intended to impede the
arrest which the police officer was trying to make: his defence was that this did not
constitute a wilful obstruction of the officer in the execution of his duty; for by
hindering what was, he believed, a mistaken arrest he intended 'to assist the officer
in the execution of his general duty to investigate the circumstances of an
offence'.24 The court thus had to determine the relationship between hindering the
arrest of this man, which Mr Hills admittedly intended, and obstructing the officer
in the execution of his duty: in holding that, since Mr Hills did not claim that the
arrest was unlawful, his belief that it was misguided did not give him a 'lawful
excuse' to interfere as he did, the court in effect held that impeding a lawful arrest
constitutes obstructing the arresting officer in the execution of his duty; that to
intend the former is to intend the latter. Just as Chandler held that whether a
defendant's purpose is 'prejudicial to the interests of the state' depends, not on
whether the defendant thinks it is prejudicial, but on whether the Crown thinks
so;25 Hills v Ellis holds that so long as a police officer is acting lawfully it is for him,
and not for an intervening civilian, to decide what his duty is and whether he is
executing it: one who directly intends to impede a lawful arrest therefore directly
intends to obstruct the arresting officer in the execution of his duty.
The agents in these cases should indeed be taken in law to intend the specified
effects: not because the law should extend the ordinary concept of intention to
count such foreseen effects as intended, but because these effects are directly
intended, in the ordinary meaning of the term. Y can be a foreseen but
non-intended side-effect of X only if X and Y are distinct effects: if the occurrence
of Y is so 'inseparably bound up with' [420] that of X that Y is an implication
rather than a distinct side-effect of X, to directly intend X is to directly intend Y.
This notion of 'inseparability' is not, however, entirely clear; and there may thus
be a hazy borderline between directly intended effects and foreseen side-effects.
Inseparability is not just a matter of empirical certainty: I am certain that
drinking this bottle of whisky will give me a hangover, but do not directly intend
22
See Smith & Hogan, Criminal Law 372-3.
23
Hills v Elhs [1983] QB 680; Williami 419.
24
Ibid at 682.
25
Chandler v DPP [1964] AC 763.
SPRING 1989 Intentions Legal and Pkilosophical 83
that hangover. Are X and Y 'inseparable' if the occurrence of X entails that of Y; if
the non-occurrence of Y would entail the non-occurrence of X and thus the failure
of the intended action; if Y is logically rather than merely contingently connected to
X; if we cannot imagine X occurring without Y occurring? But the distinction
between logical and contingent connections, or between what can and what cannot

be imagined, is itself not always clear. I would say, for instance, that the
decapitation of a human being entails her death (that she is alive entails that she has
not been decapitated), so that to intend decapitation is to intend death. But others
might claim that the connection is empirical, not logical—that death is a certain but
still contingent effect of decapitation; and the question then is whether our concept
of a human being is that of a being who is, inter alia, killed by decapitation: can we
imagine a human being surviving decapitation?26
Many cases are nonetheless straightforward. A terrorist who gives a warning of
the bomb he has planted [423] can deny that he directly intends to cause death even
if he is sure that a bomb disposal expert will try to defuse the bomb and will be
killed if the bomb explodes as and when he intends it to: 27 for we can imagine the
bomb exploding without causing death by imagining that no attempt is made to
defuse it, which is both logically and empirically possible. (He should still be
convicted of murder if he causes death, since an oblique intention to kill should
suffice for murder; the fact that his intention is oblique rather than direct will
matter only if death does not occur, and if attempted murder should require a
direct intention.)
As for the man who blows up a plane in flight [423], the death of those on the
plane is part, rather than a foreseen side-effect, of his intended destruction of the
plane: he directly intends to destroy the plane, in order to get the insurance money;
and destroying the plane includes destroying its contents. He cannot claim that his
action is aimed at the plane as distinct from its passengers; the destruction which he
directly intends encompasses them all. So too, to mount a saturation bombing raid
on an entire town, in order to destroy the munitions factory in it, involves
intending to kill the civilians in the town, since the bombs cannot be said to be
aimed at the factory as distinct from the rest of the town; whereas a pilot who aims
at the factory as distinct from the surrounding town can deny any direct intention
to kill the civilians living nearby, even if he is certain that some of his bombs will
miss their target and kill civilians.28
Perhaps we could avoid the problem of distinguishing logical from empirical
connections by saying that X and Y are 'inseparable' if it is logically or empirically
impossible that X should occur without Y occurring. We could still distinguish
side-effects which are certain, but not directly intended, from effects which must
count as directly intended since it would be impossible for the agent to achieve
what she intends without bringing them about: empirical certainty is the 'certainty
26
See Duff, 'Intention, Mem Ret and the Law Commission Report* [1980] Crim LR 147, 153-4.
17
See J. C. Smith in [1985] Crim LR 379, at 382.
a
See G. E. M. Anicombe, "War and Murder" in R. Waaienuuiu (ed), War and Morality (Wadjworth 1970) 42, at
51; T. Ntgd, War and Massacre* in Nagel, Mortal Questions (CUP 1979) 53, at 60-1.
that in the ordinary course of events the consequence will follow unless something
unexpected supervenes to prevent it' [422] ; 29 and an empirically certain effect is
'inseparable' from a directly intended effect if it is impossible that (if the directly
intended effect occurs) anything unexpected could supervene to prevent its
occurrence. We may have to accept, however, that the borderline between direct

and oblique intention is to some degree irreducibly indeterminate. This would
please those who believe that the law should never distinguish direct from oblique
intention: but those who think that this distinction must sometimes be drawn can
perhaps only try to deal with problem instances case by case.
Steane and Ahlers also raise questions about the relation between what is directly
intended and what the law forbids.30 Mr Steane intended to broadcast as the enemy
instructed, in order to save himself and his family: but did he act 'with intent to
assist the enemy'? 31 That depends on whether 'assisting the enemy' was a distinct
effect of his broadcasting, or an aspect of the broadcasting itself; on whether
broadcasting constituted assisting the enemy. If to 'assist the enemy' is so to act that
his war effort actually benefits, Mr Steane (and prisoners of war doing forced
labour32) could deny any direct intention to assist the enemy: for though the
Germans clearly intended that Mr Steane's broadcasts should benefit their war
effort, he could deny that this was any part of his direct intention; his action would
not have been a failure had his broadcasts brought no actual benefit to their war
effort. But if I 'assist' the enemy if I do, on his orders, what he believes will benefit
his war effort, then neither Mr Steane nor the prisoner of war (nor one who broad-
casts for the enemy to earn cigarettes33) can deny a direct intention to assist the
enemy; their only defence is one of duress.
Mr Ahlers, who helped Germans of military age return to Germany after war was
declared, was charged with 'contriving and intending to aid and assist', and
'maliciously and traitorously adhering to, aiding and comforting', the King's
enemies. 34 Now he clearly and directly intended to help these German citizens to
return to Germany. If such help constituted assisting the enemy, he directly
intended to assist the enemy; his defence would have to be that, given his
(reasonable) belief that as German consul he was required and legally entitled to
help them, 35 he was not 'maliciously and traitorously' assisting the enemy. But if
'assisting the enemy' involves actually benefiting the enemy's war effort, he might
deny a direct intention to assist the enemy: he intended 'merely to carry out his
duty and help these German subjects to return to their own country'; 36 and though
he knew that some benefit to the enemy war effort would ensue as a side-effect of
» Following Lord Bridge in Mohaty [1985] AC 905, at 929B.

30
Suwu [1947] KB 997; AUtn [1915] 1 KB 616; Williams 428, 436-7.
31
Defaa (General) Rtpdatiau 1939, Reg 2A.
32
Of whom Lord Goddard thought it would be absurd to say that they acted "with intent to assist the enemy";
Steam at 1005-6.
33
An example which Williams thinks shows the absurdity of acquitting Mr Steane on grounds of lack of intent;
Criumai Law: The General Pan (2nd edition, Stevens 1961) 41.
35
Ibid at 619, 624.
34
Ibid at 625.
this, he did not act in order to benefit the enemy (nor indeed did he intentionally
benefit the enemy, since his responsibility was simply to do his consular duty).
(But doubt is cast on this defence by the fact that he asked 'men able to bear
arms, between the 17th and 45th years' to report to the Consulate.37 Had he
intended just to do his consular duty he would surely have asked any German

citizen to report; and if we ask why he should have focused his request on those of
military age, the obvious answer is that he did so because their return would assist
the German war effort—in which case he directly intended to assist the enemy.)
The issue in these cases is thus not just whether treason should, as Williams
suggests [437], require a direct intention to assist the enemy: we must also ask what
'assist the enemy' should mean; and to answer this question we must clearly look,
not just at the ordinary meaning of 'assist' (which may be both indeterminate and
inapt for the law's 'specific requirements'), but at the substantive issue of what
kinds of action and intention the law of treason should cover.
Direct or Oblique Intention?

Though the issues discussed so far, about the proper definitions of, and the
distinction between, direct and oblique intention, are relevant both to the way in
which the concepts should be defined and explained in the law, and to how some
cases should be decided, the more substantial issue is that of whether or when the
law should distinguish direct from oblique intention, and make guilt depend on
direct intention. Williams thinks that there are just three kinds of offence which
should require direct intention; offences of producing mental stress, some cases of
accessoryship, and treason [435-7]. To convict in such cases merely on the basis of
oblique intention would make the law too onerous: it would penalize conduct
which should not be criminal at all, or count as gravely criminal conduct which is
not that culpable.
The criminal law should distinguish direct from oblique intention only when
there is some significant difference inresponsibilityor culpability between one who
directly intends the relevant effect and one who foresees it as a certain side-effect of
her intended action. The problem is to find some principled (rather than intuitive)
way of deciding when this is the case; and the charge that philosophers who discuss
intention in the law 'do not relate their discussions to any particular ethical theory'
[417] is clearly relevant here. I do not think, however, that we can identify some
unitary ethical theory from which we can draw a clear and determinate solution to
this problem: we must rather recognize that, here as elsewhere, we face a conflict
between two quite different kinds of ethical view which may agree on the proper
definition of many offences, but which disagree in several crucial contexts. The
most that a philosophical discussion can do is to show what this conflict involves,
and what the implications are of either kind of view: any final decision about
whether or when the law should distinguish the two kinds of intention must be
" Ibid at 617.

made by looking at each kind of offence in turn, and will depend on how strongly
we are drawn in each case by one or other of the conflicting views.
The conflict is between consequentialist and non-consequentialist conceptions of
responsible agency, and of the aims of the criminal law. We can identify the key
features of the consequentialist view by looking first at the 'Harm Principle', which

holds that the primary aim of a system of criminal law should be to prevent, or
reduce, the occurrence of certain kinds of significant harm.38 This principle may
seem incontrovertible: but we must attend to the consequentialist's interpretation
of this notion of 'harm'.
What harms should the criminal law aim to prevent? Death, bodily injury and
the loss of property may seem to be three obvious 'primary harms' (each primary
harm will generate a range of 'secondary harms', which take their character as
harms from their relation to a primary harm; if death is a primary harm, then being
subjected to the threat, risk or fear of death is a secondary and derivative harm);
thus 'the principal end to be served by the law of homicide is the preservation of
life'.39 Now the crucial point about this way of explicating the Harm Principle is
that such harms are identified as harms without any essential reference to human
action as their cause; 'one can hope to analyse the idea of harm . . . without
mentioning causally contributory actions'.40 Death is understood as a harm
independently of what causes it: it may result from human action or from natural
causes, but in either case its essential character as a harm is the same; one who dies
from natural causes suffers essentially the same harm as a murder victim (though
one or the other mode of death might in different cases be more painful or
distressing).
Though these harms are initially identified without reference to human actions
as their causes, the criminal law, as a set of sanction-backed prohibitions, can help
to prevent them by prohibiting and thus preventing actions which cause them. It
can do this in various ways: by directly prohibiting actions which cause such harms
('killing', 'wounding and causing grevious bodily harm', 'damaging or destroying
property' or 'depriving another of his property'); by prohibiting actions which are
likely to cause such harms, under descriptions which refer directly to those harms
('attempting to kill'; 'reckless driving', defined in terms of the creation of an
'obvious and serious risk of causing physical injury';41 or 'causing danger to the
lieges by culpable recklessness'42); by prohibiting conduct which is likely to cause
such harms, but under descriptions which make no direct reference to those harms
('driving with excess alcohol in the blood', or offences under s.19 and s.20 of the
Firearms Act 1968). For our present purposes, however, we may focus on
prohibitions which refer directly to some primary harm, and take homicide as our
main example.
31
See Feinberg, Harm to Otktn.
39
H . Weschkr & J. Michad, 'A Rationale of the Law of Homicide I' (1937) 37 Columbia LR 701, at 730.
40
Feinberg, op cit at 31: tee Chs 1-3 generally, and P. J. Fitzgerald, Criminal Law and Pipmhmau (OUP 1962)
Chn.
41
Lawrtna [1982] AC 510, at 526H (Lord Diptock).
42
See G. H. Gordon, TTu Crimaal Law of Scotland (2nd edition, W. Green & Son 1978) 837-40.
The criminal law should clearly not penalize every action which causes, or
creates even a serious risk of, death: death may sometimes be justifiably caused; the
prohibition of dangerous conduct may be in other respects too costly (a uniform
speed limit of 10 mph would save lives, but we are not prepared to pay the cost of
that); and the law should anyway not in general hold agents strictly liable for what

they actually do or cause. Though a purely consequentialist concern for efficient
harm-prevention might not generate tolerable principles of liability, we may say
that the law should only convict an agent when she can fairly be held responsible
for her fatal or dangerous conduct; and the central criteria of responsibility will,
from this point of view, be those of knowledge and control.*3 I am, on this view,
paradigmatically responsible for a death, or a risk of death, which my conduct
causes if I know that my conduct will have that effect, and control the occurrence
of that effect in the sense that I could prevent its occurrence by acting differently.
(Knowledge and control are the central criteria of 'liability-responsibility': my
liability for an effect also depends on whether I am 'responsible' for it in the sense
that it is relevant to my action; this latter notion of responsibility is a broader
version of Hart's conception of 'role-responsibility'.44
That these should be the criteria ofresponsibilityfollows from a consequentialist
view of action. To a consequentialist, actions are right or wrong only in so far as
their consequences are good or bad. Her primary focus is thus not on actions
themselves, but on outcomes; on the states of affairs which actions bring about. The
logical basis for judging an action to be right or wrong is a judgment of a state of
affairs as being good or bad; only given such a judgment can we decide whether it is
right or wrong so to act as to bring that state of affairs about. Actions play a
secondary and derivative role within this perspective; they matter in so far as they
are causally related to (productive of) good or bad outcomes: what matters about
my action of lying is not its intrinsic character, but the goodness or badness of its
actual or likely effects.45)
If actions thus matter as ways of causing significant outcomes, an agent's
culpability will be a function of his responsibility for an actual or likely outcome of
his action, and of the badness of that outcome; and he will be responsible for an
outcome in so far as he has effective control over it. He controls an outcome in so
far as, first, he knows that it will or might be caused by his action; and, second, he
has the power to act either so that it occurs or so that it does not occur. The basic
conditions of moral responsibility (and thus, ideally, of criminal liability) are
therefore voluntary conduct and foresight of the relevant outcomes of my actions:
the paradigm of moral culpability involves the certainty that my voluntary act will
bring about an evil outcome; and lesser degrees of culpability are generated by
foresight falling short of certainty. If I voluntarily do what I am certain will cause
death, I am fully responsible for that death, since I know that its occurrence
43
See H. L. A. H u t , 'Legal Responsibility and P T i ' n ' i n d 'Intention and Punishment', in Pimukmau tad
RtspotuibiHty(.OV? 1968) 28,113.
44
See Hart, Pmaslontnt and Rispomibilily 211-17; and above pp 79-81.
43
See Nagel, *War and Massacre', above n 28; Duff, 'Intention, Responsibility and Double Effect', above n 9.
depends on what I do; 46 I am guilty of murder, unless I have some justification or
further excuse, since I cannot realistically hope that death will not ensue. If I do
what I realize might (rather than wilt) cause death, I am to a lesser degree
responsible and culpable: for the occurrence of death then depends to a greater
degree on other factors than my action; and since I can hope that I will not actually

cause death, I do not show myself to be as willing to cause death as one who does
what she knows will cause it.
It follows from this that oblique intention, intentional agency, provides the
consequentialist paradigm of criminal fault; or at least that there is no difference in
culpability or responsibility between one who directly intends a prohibited
outcome and one who obliquely intends it—and consequentialists familiarly see no
intrinsic moral difference between the two kinds of intent. 47 This is clearly true of
crimes of 'basic intent', involving responsibility for a harm which actually occurs as
part of the actus reus of the offence: for whether I directly intend that harm or
foresee it as a certain side-effect of my action, I know that its occurrence depends
on what I do; since what matters is the occurrence of the harm, and my control
over it, I am thus in either case fully and culpably responsible for it. But the same is
true of crimes of 'ulterior' or 'specific' intent, when what matters is an agent's
culpability as to a harm which his action might cause, but whose occurrence is not
part of the actus reus of the offence: here too there is no significant difference in
culpability between one who acts with the direct intention of causing a harm and
one who does what he is certain will cause that harm. 48
This is clearest in the case of attempts. What matters, from this point of view,
about an attempted crime is that it creates a serious risk that a significant harm
(death, in the case of attempted murder) will occur; and that it is also likely to
cause secondary harms, such as the fear of death. There is thus no reason to require
a direct rather than an oblique intention for attempted crimes: one who does what
she is certain will cause death does, knowingly, as much to make it likely that both
primary and secondary harms will ensue as one who acts with the direct intention
of causing death. Indeed, the Scottish doctrine that the mens rea of attempted
murder is the same as that of murder 49 should, from this point of view, apply to all
attempts. If, for example, the culpability of a reckless wounder differs so little from
that of an intentional wounder that both should be convicted of the same crime
46
See Hart, 'Intention and Punishment', above n 43, 121-5.
47
See, for instance, J. C. B. Glover, Causing Dtath and Saving Live (Penguin 1977) Ch 6; J. Harris, Violent* and
Responsibility (RKP 1980) 48-55.
41
The distinction between 'bane' or 'general' and 'ulterior' or 'specific' intent is of course obscure (see Williams,
Ttxihook of Criminal Law (2nd edition, Stevens 1983) 471-3). I use it here to mark the distinction between offences
involving an 'intent' which 'extends only to the oasts rats' of the offence, and those involving an 'intent' which 'extends
beyond' the actus rots; teejaggard v Dickinson [1981] QB 527, at 532 (Donaldson LJ): but I take the actus mis here to
inchidf not only the 'physical act', but also such consequences as must occur for the offence to be committed; see
Williams, op cit 472. Wounding "with intent to do some grievous bodily h u m ' is one obvious exception to this general
rule (Williams 427): another is murder—because, I believe, the 'intent' to cause serious injury which constitutes
implied malice in murder should be a direct intention (see below, pp 92-93).
49
Cawthomt v HMA [1968] JC 32: see G. H. Gordon, "Cawthorne and the Mens Rea of Murder 3 1969 SLT
(News) 41, and Tkt Criminal Law of Scotland 264-7; Scottish Law Commission, Consultative Memorandum N o . 61
(1984), Atumpud Murdtr. For one of the few serious attempts to argue that Rngliih law should follow this route, see D .
Stuart, 'Mens Ret, Negligence and Attempts' [1968] Crim LR 647.
under s.2O of the Offences against the Person Act 1861, should we not likewise
convict them both of the same inchoate offence if they do not actually wound? This
line of argument should appeal especially to those 'subjectivists' who want to
reduce the extent to which criminal liability depends on chance.50 It is bad enough
that whether D is guilty of wounding, or only of attempted wounding, should

depend on the chance matter of whether his conduct actually causes a wound; it is
surely even worse that the chance fact of not causing a wound should save him from
conviction even for the inchoate offence if he acts recklessly rather than inten-
tionally.
This extension of the mens rea of attempts would clearly stretch the legal
meaning of 'attempt' well beyond its ordinary meaning; and arguments in favour of
requiring intention for attempts often begin, and sometimes end, with an appeal to
ordinary language.51 But we cannot allow ordinary language to settle the substan-
tive issue of the appropriate mens rea for inchoate crimes.52 If the argument
sketched here justifies convicting of the same inchoate crime all who act with the
mens rea appropriate to the complete crime, we should either give a special legal
meaning to 'attempt', or find some other appropriate term.
Whatever the merits of the Cawihorne doctrine of attempts, it is at least clear
that, from this consequentialist perspective, oblique intention should be sufficient
mens rea for an attempt. So too for other 'with intent' crimes involving an 'ulterior
intent': for the 'with intent' clause will typically specify some further harm which is
made likely by the agent's action; and one who obliquely intends that harm will be,
for the consequentialist, as culpable as one who directly intends it. More generally,
from this perspective, the law need never distinguish direct from oblique intention;
for there is no intrinsic difference in culpability between them. (This conclusion
holds if criminal liability should be determined by the culpability of the individual
action: if we allow that it may also depend on the dangerousness of the agent, we
would need to consider the possibility that one who directly intends a criminal
result is more dangerous, because more likely to repeat her attempt, than one who
obliquely intends it.53)
A Non-Consequentialist View
There is, however, a different, non-consequentialist perspective on human action
which, while it too will take oblique intention to be as sufficient as direct intention
for many crimes (in particular for crimes of 'basic intent'), may hold that in some
90
See, for instance, J. C. Smith, T h e Element of Chance in Criminal Liability' [1971] Crim LR 63; A . J.
Ashworth, 'Belief, Intent, and Criminal Liability' in J. F»lr»i««r & j . Bell (eds), Oxford Essays in Jurispmdena (3rd
series, O U P 1987)1.
91
See, for instance, Scottish Law Commission, Aatmpud Murdtr, above n 49, 29; J. C. Smith, T w o Problems in
Criminal Attempt! RcexamiiMd' [1962] Crim LR Hi at 13$, 212 at 217-18: compare Whybron(19$l) 35 Cr App Rep
141 at 147; Mohan [1976] QB 1 at 11; Law Commission N o 102 (1980) p i n 2.16.
92
See Stuart, 'Mens Rea, Negligence and Attempts', above n 49; Fitzgerald, Criminal Law and Piomkmtnt 98-101;
Williams, 'Criminal Attempts—A Reply' [1962] Crim LR 300 at 305-6.
93
See M. Cohen, "Questions of Impossibility' [1980] Crim LR 773; J. B. Brady, 'Puniihing Attempts' (1980) 63 The
Monisi 246.
cases (especially in crimes o f ulterior' or 'specific' intent) direct rather than oblique
intention should be required. We can begin to explicate this view by looking again
at the consequentialist reading of the Harm Principle; and by noticing that we
cannot always identify the primary harm which the law aims to prevent in a way
that makes no essential reference to human action as that which causes the harm.

What, for example, is the primary harm which the law of rape aims to prevent?
It is surely a harm which is internal to the act of rape: whatever further physical or
psychological harm the victim may suffer (and no such harm need be proved), rape
constitutes a grievous attack on, or invasion of, her sexual integrity and autonomy;
this is the 'harm' which rape essentially involves. But this harm can only be
identified by reference to an intended human action as its source: for only a certain
kind of intended action can thus invade or attack a woman's autonomy and
integrity. We cannot first identify a state of affairs in which this harm consists, and
then find that it is caused by human action: for essential to the description and
identification of the harm as a harm is a human action which perpetrates it. Central
to the notion of rape as an evil is thus not the notion of an outcome which might
result either from human action or from natural causes, but that of a human action
which attacks its victim; and what defines that action as an attack is the direct
intention of its agent.
This is not to deny that recklessness as to the woman's lack of consent should be
sufficient for a conviction for rape: it is rather to insist, not only (and obviously)
that rape must involve an intended act of sexual intercourse, but also that the
recklessness which makes a man a rapist is itself a feature of the intention with
which he acts; that the harm of rape is essentially connected to the vicious character
of the rapist's intentions. For a rapist's intention is not the (innocent) intention to
have genuine intercourse to which the woman's consent is essential, but the
(corrupt) intention to have intercourse purely for bis own gratification; and such an
intention manifests the kind of contempt or disregard for his victim which
constitutes the moral essence of rape. 54
Now with a crime like murder we have a more obvious candidate for a
consequential harm which the law aims to prevent—human death: but the example
of rape should lead us to ask more carefully whether that is the precise harm with
which the law of murder is concerned; and whether, in particular, a murder victim
suffers essentially the same harm as one who dies from natural causes (some
murders may of course be more frightening or painful than some natural deaths:
but this is not always so, and our concern here is anyway with the harm which is
essential to murder; that harm does not include pain or fear, since it is suffered by
one who is murdered painlessly in her sleep).
Both the murder victim and the victim of natural causes end up dead: but the
way in which they die can make a crucial difference to our understanding of the
harm that they suffer. For one who tries to kill me (and a directly intended killing
will on this view be the paradigm of murder) attacks me (my life, my person, my
* See Duff, Tteckkaneo ind Ripe'(1981) 3 Liverpool LR 49.

most basic rights): he wrongs me in the most serious way; and the 'harm' which I
suffer in being murdered (or in being the victim of a murder attempt) essentially
involves this wrongful attack on me. The point here is not that the murder victim
suffers the same harm of death as a victim of natural causes, and Hie further harm of
being wrongfully attacked: it is rather that the harm which she suffers is the

distinctive harm of being killed by another person who attacks her life. The
mischief at which the law of murder is aimed is not just the consequential evil of
death, but the evil which is intrinsic to an attack on another's life.
To a consequentialist, the paradigm of crime is doing what I know will cause
some primary harm: but on this non-consequentialist view, the paradigm of crime
is an attack on another person (on his life, on his rights); and the idea of an attack is
essentially that of an act which is (directly) intended to injure or to harm. The
paradigm of murder is thus not the occurrence of a foreseen and avoidable death (as
it is for a consequentialist), but the wilful killing of a human being; and the
paradigm of wilful killing is a directly, not an obliquely, intended killing.
Such a non-consequentialist will also count as a murderer one who intentionally
kills; one who does, without justification or excuse, what he knows will cause
death: though he does not directly attack his victim, he exhibits such an utter
disregard for, or indifference to, her life and rights that we hold him to be, without
qualification or mitigation, culpably responsible for the death which he knowingly
causes. More generally, when what is at issue is culpability as to a harm which
actually occurs (as with crimes of basic intent), she will usually hold one who
intentionally causes such harm to be as culpably responsible as one who directly
intends it: for, outside the special contexts to which the Principle of Double Effect
applies, she will not take the difference between direct and oblique intention to
mark a significant difference in degree of responsibility or culpability. The two
types of intention manifest different kinds or paradigms of culpable responsibility;
one paradigm is that of a direct attack on another person, the other is that of an
utter indifference to their rights and interests (oblique intention thus marks the
perfection of recklessness; they exhibit to different degrees the same kind of fault):
but, in these contexts at least, that difference in kind does not bring with it a
difference in degree of culpability.
In other contexts, however, she may insist on distinguishing more sharply
between direct and oblique intention: three such contexts are attempted crimes;
other 'with intent' crimes involving an 'intention' directed towards a result lying
beyond the actus reus of the crime; and the doctrine of implied malice in murder.
The argument here could be expressed as follows. The structure and meaning,
and thus the moral significance, of my actions depend partly on their subjective
character (on the intentions which guide them) and partly on their objective
character (on what actually happens). Their subjective character is determined
initially and essentially by the direct intentions with which I act: it is these which
give my actions their purposive structure; oblique intention is parasitic on direct
intention, in that what I obliquely intend are the expected side-effects of what I
directly intend. The core of human agency is direct intention: it is through forming
and acting on my direct intentions that I relate myself to the world as an agent; and
it is through my direct intentions that I relate myself most closely to the actual and
potential effects of my actions.
When the objective character of my action matches its subjective character, as
determined by my direct intentions, we have a paradigm of responsible agency: if I

directly intend, and try, to kill another person, I relate myself in the closest
possible way to that death as its responsible agent; if my intended victim dies, this
is a paradigm of deliberate murder. If she does not die, this makes some difference
to our understanding of the moral character and implications of what I have done; I
have not actually killed, or become a murderer.55 But my victim's death is still
absolutely central to our understanding of my action: it gives that action its
meaning and its structure as an attempt to kill—as an attack on my victim; and we
mark that meaning by condemning the action as an attempted murder. I try to
make myself a murderer; and I am properly condemned as a would-be murderer.56
The same point applies to at least some 'with intent' offences. In the case of
treason, for instance, one who sets himself to assist the enemy sets himself to injure
his own country: his action is then 'necessarily hostile to [his] country in intention
and purpose';57 he defines himself as a traitor by his (direct) intention to assist the
enemy. He may still be able to justify or excuse his conduct, for instance on
grounds of duress: but what he must justify or excuse is his deliberate treachery.
My direct intentions can also extend my agency and responsibility to encompass
effects which I do not intend, and may not even foresee. I have argued elsewhere
that I can properly be held reckless as to a risk which I create, even if I am unaware
of it, if it is integral to my intended action; and 'intended' here means 'directly
intended'.58 This general claim has a particular application to murder, since it
helps to explain the doctrine of implied malice.59 If I embark on a serious attack on
another's physical well-being (if I directly intend to cause her serious injury), I may
neither intend nor expect to kill her: but I intend to subject her, not just to the
injury which I directly intend, but to the serious risk of yet more serious physical
harm than that; for that risk is an integral aspect of my directly intended action. If
my attack actually kills her she suffers a harm which is greater than, but
continuous with, that which I directly intend (the harm not just of death, but of
being wrongfully killed): in attacking her I take the risk of subjecting her to that
harm, and thus also take the risk of making myself her killer—her murderer. My
attack exhibits that 'wicked recklessness' which is sufficient for murder in Scots
law:60 this is not just the recklessness of one who does what he knows creates a
" See P. Winch, Trying* in Winch, EOaa and Action (RKP 1972) 130; but see also Aihworth, 'Belief, Intent, and
Criminal Liability", above n 50, 13-21.
56
The view sketched here might also justify an acquittal for some kindi of 'impossible attempt', if the agent ii so far
from being 'on the job' (Otborn (1920) 84 JF63; see P. English,'Did he Think it would Do the Trick?" [1970] Crin LR
15) that his action does not really constitute an attempt—an attack—on a potential victim; see I. H. Dennis,
"Preliminary Crimes and Impossibility' (1978) 31 Current Legal Problems 31, at 41-6.
57
Ahlen [1915] 1 KB 616, at 626.
51
"Professor Williams and Conditional Subjectivism' [1982] CLJ 273, at 279-80,284; Xkthkoell and Lawrence: The
Retreat from Subjectivism' (1983) 3 OJLS TJ, at 93.
w
See Duff, Implied and Constructive Malice in Murder" (1979) 95 LQR 418.
40
See Gordon, The Criminal Law of Scotland 735-6.
serious risk of death—and who would be guilty of manslaughter or of culpable
homicide if he actually caused death; it is a distinct and particular kind of
recklessness which is integral to a deliberate attack on another person.
Such 'wicked recklessness' is not, however, enough to convict me of attempted
murder if my victim does not die. A charge of attempted murder posits an intimate

relationship of culpable agency between the defendant and a potential death: but in
the case of implied malice my relationship to my victim's death depends more on
what actually happens than it does when I try to kill her; though my attack is
potentially murderous it is not (without her actual death) related as closely to her
death as a direct attempt to kill. Responsible moral agency is constituted partly by
intention and partly by what actually happens: the weaker the link to death which
the agent's intention secures, the more it matters whether she actually causes
death.61 One who tries to kill does not just take the risk of becoming a murderer;
she directs herself and her action towards it; even if death does not ensue, her
action is murderous, and she is a would-be murderer. But one who (while
intending to injure) neither kills nor intends to kill is much further from being a
murderer than one who tries but fails to kill: for there is then neither the intention
to kill nor the fact of death to render her action murderous; she takes the risk of
becoming a murderer, but if that risk is not actualized she is not a murderous
agent.62
But what of oblique intention—the person who is certain that he will cause
death, or serious injury, as a side-effect of his intended action? Is there really, for
instance, a significant moral difference between one who directly intends to kill, as
a means to some further end, and one who is fully willing, in pursuit of such an
end, to do what he is certain will cause death as a side-effect? There is still this
difference, that the action of one who directly intends to kill is structured by that
intention in a way in which the action of one who foresees death even as a certain
side-effect is not: the former directs his will towards the death of another human
being, and tries to become a murderer; the latter is willing, but does not try, to
become one. When death ensues, we may count them both as murderers: but if
death does not ensue, we may count only the former as an attempted murderer. A
direct intention to kill makes an action essentially murderous even in the absence of
the fact of death (of an objective act to match the subjective intention): but the
expectation of causing death as a side-effect does not connect the agent so closely to
that death; the actual fact of death is then needed to render his action truly
murderous.
A similar account could, I think, be given of why the intention which constitutes
implied malice should be a direct intention; and of why at least some 'with intent'
crimes, such as treason, should require a direct intention: the guiding thought in
each case is that direct intention creates a stronger link than does oblique intention
«> Compare C. M. V. Oarkson & H. M. Keating, Criminal Law: Ttxz and Mauriah (Sweet and Maxwell 1984) Ch
9.
62
Such a view is, I realize, amthirni to time who think that criminal liability should not depend on chance (see n
55 above); I realize too that it needs far more explanation than I can provide here.
between the agent and what she 'intends'; and that while an agent is fully
responsible for obliquely intended harm which actually occurs, without that actual
occurrence the difference in the subjective structure of the two kinds of action
becomes more prominent and more significant. A directly intended attack on
legally protected rights or interests retains its essential character as an attack even if

it fails; its victim is still seriously wronged and in that sense harmed: but the fact
that an agent expects her action to cause harm as a side-effect, and thus disregards
the rights or interests which her action threatens, while it makes her fully
responsible for that harm if it occurs, does not in the same way constitute her
action itself, in the absence of such actual harm, as a wrongful attack.
It might be said that all I have done here is describe a non-consequentialist

perspective which would sometimes distinguish direct from oblique intention: that
I have done nothing to justify this view against a consequentialist view which would
draw no such distinction, or to specify the precise cases in which a non-consequen-
tialist would draw this distinction. But I do not know what (further) justification
could be offered for either kind of view, beyond an explication of their content, and
of their implications for particular offences. The explication itself provides the only
possible justification; it will either persuade, or fail to persuade, us that this is a
view which is not just morally significant, but one which the criminal law should
express. I believe that the non-consequentialist view should find expression in the
law; and that we must appeal to it if we are to make sense, for instance, of the
doctrine of implied malice, or of the view that treason should require a direct
intention to assist the enemy, or of the argument that attempts require a 'specific
intent' to commit the complete crime since in an attempt 'the intent becomes the
principal ingredient of the crime':63 but much more clearly needs to be said both
about the philosophical and moral foundations of such a view and about its
implications for other kinds of offence.
On a consequentialist view the proper aim of the criminal law is to prevent the
occurrence of serious kinds of consequential harm, by forbidding and penalizing
conduct which culpably causes such harms or makes their occurrence likely: on the
non-consequentialist view, the criminal law should also attend to the (non-con-
sequential) kind of harm which is intrinsic to a deliberate attack on another
person's rights or interests; and it should, at least sometimes, discriminate actions
on the basis not just of their foreseen consequences, but of the moral character of
the direct intentions which structure them. We can decide which of these views
should prevail only by investigating their implications for each kind of case in
which they conflict (nor should we suppose in advance that we will give the same
answer in each such case): the most that I can hope to have achieved here is to
provide an introduction to that investigation.
63
Whybrm (1951) 35 CrAppRepl41.it 147;JW<*DI [1976] QB 1 at 11.

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Intentions Legal and Philosophical

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Direct Intention and Desire

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» Following Lord Bridge in Mohaty [1985] AC 905, at 929B.

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Direct or Oblique Intention?

" Ibid at 617.

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* See Duff, Tteckkaneo ind Ripe'(1981) 3 Liverpool LR 49.

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It might be said that all I have done here is describe a non-consequentialist

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