There are hosts of examples: Washington Criminal Code 9A.44 ff wherein intent is seldom a defence to the charges of any kind of sexual contact One

may read the COMMENTARY ON TOE IMMORALITY ACT (Act No.23 of 1957) by Hardie .

and Hartford (Juta § Co.,Ltd., I960, Cape Town) to observe how offences of ;vf>'l\

the strictest liability are cast, diminishing mens rea almost totally. .^£'77 > The classic case, of course, is: R v . Larsonneur (1933) 97 J.P. 206 (C.C.A.), ’ the police, having arrested D., caused her to be found in the United Kingdom, her presence thereby being an immigration offence. Paradigm cases for offences of this kind may be older counterfeiting or uttering cases in which the offence is complete when D "knows" the coin to be false, no matter how innocently he

acquired the coin or note. Elizabethan recusant statutes functioned much the-

56

In the course of legal experience, however, we find that

one proposes reasons for his actions. A simple causal explanation ;

will not account for a motive,, for a goal, for an intention, for a \ A

hope, for a desire, or for a change (as in, VI decided to wear brown

this season and not pinstripes.”) , ii we wish to utter a trivial : .

metaphysical statement of the form that change (of whatever kind)

involves a transition from what may be the case to what is the case y

we have done so by excluding that 'what may be the case' can only K

be a case at all because one designs that it be the case rather than v

some other end be a possible case for consideration. To exclude A A y

that one considers is to exclude a world of locutions which are

A A

part of our common language*- If we hold that such a host of locutions

are accidental and are nominative only (they are only names which we

use in discourse but the names relate to no internal condition or A.

situation) then how odd it is to explain any state of affairs A A r A A)

One's explanation of some state of affairs could always be rejected

by an appeal to the theory that language, is only used and does not ;

convey what is the case outside of itself.7 One uses a sentence, and ’

the world does what it does. Any explanation (even of itself) would

A

be little more than an accidental conjunction of a sound or sign with

an event. Even when one believed that he might have explained, one •. ^ A

would be haunted, at least in theory, by the persistent/doubt if he

could know that he had explained some event or other, even if the event';;'

were so simple an eveit as knowing whether or not one had used a sentence

correctly. 1 A • • •• ' “■; ' V - A y a ' A a >,:A A A . . A V'A rJ'v.y

If we admit that some aim or other can be a possible case then

we are assuming that action for which a human being is to be held re­

sponsible is ah act for which a reason can be given by him for its

doing or production. A theory of 'potency’ and 'act* at the level

of human discourse is a theory which suggests that what now is the

case, for example some dispute in court, is a production which need

not have been the case. If one were forced to do this, and only this,

then the defence of necessity or duress might obtain, and, by the

force of such a defence, it might be argued that because an agent

were only a causal feature is a set of features ( Bloggs was just ,

a cog in the wheel of events ) he was absolved of human responsibility.

The first aspect of an intentional description is that one can

offer a reason for what action he proposed to himself. : How one

causes himself to act may not admit of a simple description. One may

appeal to simple human experiences to show this condition. When one

writes a letter he may have intended to say one thing, but, when finished,

have noticed that he omitted to say what he had intended to say, or

said it poorly and unciearly, or said it clearly. How one physically

directs himself, or how one sententially produces sentences upon the

page in the form in which they appear, may admit of no final and ex­

haustive situation ( ie, moving from some general explanation of the

* I do not want to suggest that a little man inside of a person ’pro­ poses' projects to be done or aims to be reached. What we do with the language of intention is to understand why an agent acted, and our assumption is that one can, if only to himself, ascertain why he did this rather than that. The standard way we propose a con­

sideration to ourselves is in question and answer form. But the

question and answer fo % ( an arbitrary feature of a non-necessary

language form ) is not the action itself. It mirrors our understanding

■ form, "all *x ’ s do such and such, and this ’ x ’ did such and such in this

! instance.”). If what one did at this moment did follow from some general

explanation, then one’s human actions would be a function of that - general;/

/ explanation. One could argue that responsibility then would not be a / / /

; feature of what some ’x ’ did; rather, it would be a feature of the general ^

: explanation ( as with the example of the defective medicine ). The faiJu^e;V/;\/4;/;

of the prescribed tablet resulted from a failure to follow the formula cor- \

; fectly when preparing the tablet. Liability would be attributed to the -

wrong formula having been followed. / ' ' >

A second aspect of an intentional description is that one may be able

to account for his actions by means other than an appeal causal presentations.

If an appeal is made totally to a casual explanation of what one did, -it/is

arguable if any reason at all has been provided for what one did. It is a / ;v V

variant of the defective tablet case. One did this

because one is so constructed, and things accordingly constructed act in this

, way and not in that way.- •//; " V * ' • /. K ‘.r-.

' The twofold approach of an intentional explanation Suggests that one may j ^

V propose an end, and then one; may accomplish that end (; if there are no in/

/ ternal contradictions to prevent an accomplishment ). Crimes of aiding and"

abetting preserve this distinction. * One aspect of the crime is to aid,

; whilst a further aspect is to take steps to abet. What had O in mind, and what >

; ' •. 48. Cf., Free Action, by A . I . Melden ( London, 1961.), chapter Nine, ’’Motive and Explanation”, wherein the author argues that causal explanations and ex­ planations by an appeal to motive are not logically interchangeable, pp 83-104.

48a. R. V. Clarkson and others,[1971] 5 All ER 344. Citing R.v.Coney (1882)

V 8 QBD at 557 ”..'.to constitute an aider and abettor some active steps must be ; -"v* taken by word,br action, with ihe intent to instigate the principal, or principals.f

this court held that presence was not enough to convict a person of aiding and ;

•; abetting, but (at 347 ), ” It must be proved that the accused intended to give ;

A : steps, he took in execution? This locution is somewhat awkward. -'What.AAA^AAAA/A

the court inquires after is what the accused had in mind, and then what Ay A

overt acts the accused did to bring about effecting the plan or design. - A

Unless the Crown clearly shows that the accused had in mind and in fact A

A; A did bring himself to perform elements of the forbidden act, then there

A is not a case for the accused to answer, and the defense may move for a A ;A A A

A*;’.-: A dismissal of the charges. .-* A a V ' A A' -AAA;; y : ' A-' '.yiA,

’ , A recent example may serve to illustrate the two tier nature of ,

V criminal intention. Although this case which I cite was to be controlled

A A

A

by Smith [1961] A.C. 290, but now would be controlled by Section 8 of the A . .

Criminal Justice Act 1967, the example is appropriate here:, A A : : A

■ ; ; "The law of murder and manslaughter is set out in sections 198, A ’ A ,

A ; ; 199 and 202 of the Penal Code of Kenya. A person who b y an un- ; A A A:

lawful act or omission causes death is guitly at .least. of mail- A: .A,.•.A A

y slaughter; and if the act is done with malice aforethought, he A

is guilty of murder. Malice aforethought is established where, A \

A ; A A A inter alia, there is "knowledge that the act or omission caus- A A

ing death will probably cause the death or or grievous harm to" A

another person; and in section 5 of the Code "grievous harm” A !

A A is defined as including anything likely seriously or; permanently r:

to injure health or any organ. The Crown.. .submits.. .that

A A

Aa A ^

; A !lknowledge". . .does not mean actual knowledge, but means.. .the y.Avh.A.A-; AyA--

A A A knowledge that a reasonable man wOuld have of the probable con- r A

: sequences of his acts and omissions," 49. AA A

. Returning now to matter from the Council of Triburiense, one will A A' A

note how the fifty-third canon appears to leave room for the category ;

of accidental death; but it also adds, by way of a c a u t i o n a r y , rA A

- - 49. R . V. Sharmpal Singh [1962] A.C. - Privy Council - 188 at page 196.,

• The defendant was accused of homicide, it being claimed by the Crown -

A A A :- A; ; that he had caused the death of his wife by acts of violence on his Aye A;A AA

A part during sexual concourse with her. , A f

* In no way do I mean to suggest that an accused is required to give , A A A

' evidence and thus prove his innocence. It is for the Crown or the A A

prosecution to prove the elements of a criminal charge, and, if those A

elements are not proven, the charge falls. If, however, the accused A A A

does take the stand in his own defence, then his testimony, serves to A AA

y rebut the charges of the Crown or prosecution through suggesting that A

some other reasonable explanation can be given of the acts of the accused,

A :A" A according to the evidential canons in criminal law that one need succeed A A

.. ': vv/; ; v 6(> :-

a gloss on the text (which appears as a note in the text), it

states that if the death is other than accidental (” ...; sed '

casu contingente occiderit...”) a legal penalty would then fit • -

(M .. .ut sequent i subinfertur capitiilo.. •,f) * Of interest for the

common law is that such a distinction does appear, and is sub­

mitted for penitential consideration. I have reproduced the ;

text in a footnote, but shall comment no further on it. The

fifty-fourth canon of the Council follows Ancyrani, and I have

reduced it to a footnote only for the sake of consistency in this

text. Its matter was stated in that portion of my text on the .

Council'of;Ancyrani. *; ,;.v ? V ' ‘\v.y;W

50. ibid.,page 671, ”LIII: Si quis filium suum (quod absit) non 1 • sponte, sed casu contingente occiderit,[*iuxta homicidia non sponte]; secundum homicidia sponte commissa poeniteat, ut

sequenti subinfertur capitulo.” By contrast, Roman military :

law could be severe, ”De milite, qui commilitonem suum vul- nerauit. 22 Miles, qui commilitonem suum gladio vulnerat,

caput amittit.” l?A soldier who wounds a comrade. 22 A soldier 7

who wounds his comrade with a sword shall be beheaded.” , : ,

: taken from the Military Law from Ruffus, the text and trans­ lation appearing at pages 154 and 155 in Roman Military Law

by C. E. Brand (University of Texas Press, 1968: Austin 6 / 7

London). That one wounded a fellow soldier, and not with what / intention one may have wounded, comprised the offence; thus

the actus reus directed the penalty---the wounding itself--- >

and it would not matter if the wounding had been by accident,

by negligence, or by intention. ' , :

51. ibid., page 671, ”LIV: De his qui voluntarie homicidium fecerint, Ancyrano sancto Concilio, capite vigesimoprimo legitur: Vt

poenitentiae quidem iugiter se submittant: perfectionem vero, id ist, communionis Christi gratiam circa vitae exitum con-

sequantur. etc.” The fifty-fifth canon simply sets out penalties for intentional homicide (”Si quis sponte homicidium fecerit...”),

and there is no need for me to reproduce the text here since :

• 4 :-‘. ' - • . ' • . * . 61 £ ' V :

v When we come to view the Council of Namnetense, A.D.895,.

following upon the Council of Triburiense, we find little legal

theory, but we do find what may be called a judicial statement

about punishment for crimes. The seventeenth and eighteenth

canons state respectively, "De poenitentia homicidii voluntario"

and "De poenitentia eius quo non volens fecerit homicidium." It

is not within the scope of my study to relate crimes to punishments.

Such has little formally to do with the concept of intention. The

bearing upon the common law is that both canons reveal an attitude

of mind which assumes that to have a law one must, of necessity,

have a concomittant punishment. It is an attitude which follows

us to recent times. * In the practical order of the governmental

life of a commonwealth it may be the case that crimes must have

assigned to them subsequent punishments or fines; but in the logical

order, considering law qua law, there may be no need to make this

conjunction. One may have a law of conscience, the punishment for

having broken or transgressed a law a simple knowledge that one had

done so, and a related consequence that one was displeased by one’s

own sense of failure. The ’punishment’ would simply be that one

knew that one had violated the law; there would be no need to add

a punishment on to the fact of the transgression. I cite this as an

instance only to dispute the claim that a law necessarily entails a

subsequent punishment. It does not, but it may.

52. One need only consult Edward Poste’s introduction to Gaius

In document Exploratio intentionis (Page 82-88)