Harm and Culpability

By A. P. Simester; A. T. H. Smith | Go to book overview

7
Crimes of Ulterior Intent Jeremy Horder

We often blame people simply for having ignoble beliefs or intentions; but, contrary to the impression sometimes given by commentators, it is not only blame that is determined or influenced by mental states or processes. The normative significance of people's conduct may also be profoundly affected by the beliefs or intentions which accompany or motivate that conduct.1 This general truth is recognized across much of the criminal law. If X picks up a brick, it is the knowledge that X intends to use the brick to kill Y that licenses the use by Y of necessary and proportionate force in self-defence to prevent X so doing. If X demands his property back from Y, intending to use it in the commission of a crime, X's intention (probably) deprives his demand of any legal force it might otherwise have had, and Y is under no obligation to return the property.2 If X slaps or spanks Y, the question whether this is ordinary social contact or a criminal indecent assault may be resolved in the light of X's purpose in so acting.3 Most importantly for present purposes, if X engages in conduct that is not ipso facto regarded as a crime (or, indeed, as a wrong of any sort), that conduct may none the less become criminal if X engages in it with the intention of committing a crime.4 Similarly, if X engages in what might otherwise be regarded as relatively minor criminal conduct, but with the intention of committing a greater crime, the self-same act may thereby be transformed from a relatively minor

____________________
1
On the neglected or misunderstood significance of the distinction between normative and ascriptive rules in the criminal law, see John Gardner, "Criminal Law and the Uses of Theory: A Reply to Laing" ( 1994) 14 Oxford Journal of Legal Studies217 at 220-2.
2
Garrett v. Arthur Churchill(Glass) Ltd [ 1970] 1 QB 92; see the discussion by Glanville Williams, in his "Obedience to Law as a Crime" ( 1990) 53 Modern LR445.
3
Court [ 1988] 2 All ER 221 at 231.
4
See, e.g., the Criminal Damage Act 1971, s. 3 (having something in one's possession, without lawful excuse, intending to use it to destroy or damage another's property); also the Offences Against the Person Act 1861, s. 64 (hereinafter OAPA 1861).
I am very grateful to the participants in the criminal law discussion group at Gonville & Caius College, Cambridge, for their penetrating criticisms of a much earlier draft of this paper. Special thanks are also due to Andrew Simester for his detailed and perceptive comments on earlier drafts.

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