Inferring Intention from Foresight
M. Cathleen Kaveny
Notre Dame Law School
Law Quarterly Review, No. 120, pp. 81-107, January 2004
Notre Dame Legal Studies Paper No. 08-12
In this article I examine the relationship of intention and foresight in the English law of murder, through close examination of five key cases: Smith, Hyam, Nedrick, Moloney, Hancock, and Woollin. I argue that these cases waver between, and sometimes attempt to combine, two distinct perspectives: 1) The Identity View, which holds that a defendant who foresees (to a specified degree of probability) that his action will cause death or serious bodily harm can be said by definition to intend such a result; and 2) The Inference View, which recognizes that intention is conceptually distinct from foresight, but contends that a jury may infer a defendant's intention to cause death or serious bodily harm from the fact that he or she foresaw such a result would occur from the action in question. I then argue that neither approach is conceptually sound or practically useful. The Identity View is unsound because no degree of foresight can be defined as intention, and the Inference View is unsound because no degree of foresight, by itself, can be the basis of a reliable inference of intention. Furthermore, it is not easier to determine a particular defendant's foresight than his or her intent. English law, therefore, should acknowledge that acting with the purpose to cause death or seriously bodily harm and acting with a sufficient degree of foresight that one's action will cause death or seriously bodily harm are two distinct ways of satisfying the mens rea requirement for murder.
Accepted Paper Series
Date posted: May 22, 2008
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