The Definition of Oblique

Intention
Itzhak Kugler*
Abstract The Law Commission contended that a person should not be
held as having oblique intention with respect to a result if his whole
purpose in acting is to avoid this result. This article asserts that the
Commission was wrong concerning this point. The justifications that it
gave for the rule it suggested are not convincing, while the rationales for
the doctrine of oblique intention apply even to cases in which the whole
purpose of the actor, in acting, is to avoid the proscribed result.

Direct/oblique intention
Many offences that contain a result element can be committed ‘inten-
tionally or recklessly’. There are, however, offences that are defined so
as to require an intention to cause a specified result. The element of
‘intention to cause a result’ may appear not only in offences where the
actus reus includes the forbidden result, but also in ‘ulterior intent’
offences (i.e. offences in which the mens rea includes an intention to
produce some further consequence beyond the actus reus of the offence).
The offences in which there is a requirement of intention may be called
‘intention crimes’. A person may be convicted of ‘intention crimes’ if
when he acted he wanted to bring about the specified result. These are
cases of ‘direct intention’. However, in many ‘intention crimes’ oblique
intention is also sufficient for conviction. Oblique intention is estab-
lished in cases in which the actor, who does not act in order to cause the
proscribed result, is aware, when he acts, that there is a practical
certainty that the proscribed result will ensue.1

Practical certainty and purposeful avoidance

Clause 18 of the Draft Criminal Code for England and Wales defines
oblique intention on the lines described above. It provides that a person
acts intentionally with respect to a result ‘when he acts either in order to
bring it about or being aware that it will occur in the ordinary course of
events’.2 This definition was criticised by Professor John Smith on the
basis, inter alia, that it enables a person to be held as having intended a
result that it was his purpose to avoid. According to the definition in cl.
18 of the code, a person who knows that there is a practical certainty
that a result will happen and his whole purpose in acting is to avoid it
will be considered as intending the result to happen. Professor Smith
thought that such a person should not be treated as intending the result,

* Faculty of Law, The Hebrew University, Jerusalem.

1 See A. Ashworth, Principles of Criminal Law, 3rd edn (Oxford University Press:
Oxford, 2003) 175–6.
2 Law Commission, A Criminal Code for England and Wales, Report No. 177 (London,
1989).

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and this was one of his reasons for contending that the definition of
oblique intention in the draft criminal code should be different from that
cited above.3 The definition suggested by Professor Smith for intention
was that a person acts intentionally with respect to a result when ‘(i) it
is his purpose to cause that result; or (ii) his purpose is to cause some
other result and he knows that, if he succeeds, his act will, in the
ordinary course of events, cause that result’.4 A result which it is the
actor’s purpose to avoid is therefore not intended. And indeed in 1993
the Law Commission suggested that a person will be held as intention-
ally causing a result when it is his purpose to cause it or ‘although it is
not his purpose to cause it, he knows that it would occur in the ordinary
course of events if he were to succeed in his purpose of causing some
other result’.5 The Commission explained that one of the reasons for
adopting the new definition for oblique intention was that ‘it is prudent
to provide specifically that a result that it is the actor’s purpose to avoid
cannot be intended’.6
But is it correct that oblique intention should not cover cases in which
the actor’s purpose, in acting, is to avoid the proscribed result? The
answer is ‘No’.
The reason given by Professor Smith for his view that in cases where
the whole purpose of the actor is to avoid the proscribed result, the actor
should not be treated as having an oblique intention with regard to that
result, was that in such cases ‘It does not make good sense to say that he
intended that result’.7 He does not explain why this is so, in terms of a
discussion of justice or policy, and it seems that he relies on a linguistic
argument that in such cases it cannot be said that the result was caused
intentionally. But it seems that the linguistic argument cannot be used as
a justification for not treating such cases as ones of oblique intention.
First, other commentators are also of the view that in typical cases of
oblique intention, it is not appropriate to say, in plain English, that the
actor acted with intent to cause the result.8 And if in relation to typical
cases of oblique intention there is a readiness to accept a legal definition
which differs from the definition of ‘intention’ in plain English, why
should there not be the same acceptance in the cases under considera-
tion here? Secondly, when enacting a code, the legislature may define
certain terms in such a manner that their legal meaning will be different
from the meaning they have in plain English and, if so, it can also do that
in the context of cases in which it is the actor’s purpose to avoid the
proscribed result.

3 See J. C. Smith ‘A Note on “Intention”’ [1990] Crim LR 85 at 86. See also J. C.

Smith and B. Hogan Criminal Law, 10th edn, J. Smith (ed.) (Butterworths: London,
2002) 76.
4 J. C. Smith, ‘A Note on “Intention”’ [1990] Crim LR 85 at 91.
5 Law Commission, Legislating the Criminal Code: Offences against the Person and General
Principles, Report No. 218 (London, 1993). See cl. 1 of the Draft Criminal Law Bill.
6 Ibid. at 10.
7 Smith, above n. 4 at 86.
8 See e.g. J. Finnis, ‘Intention and Side-effects’ in R. G. Frey and C. W. Morris (eds),
Liability and Responsibility (Cambridge University Press: Cambridge, 1991) 32, 46–7.

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Law Commission illustration

The Law Commission justified the idea that a result cannot be intended
if it was one that the actor’s purpose in acting was to avoid by citing an
example where conviction for the relevant intention crime would be
inappropriate—a man who threw a child from a burning building,
knowing that the child would thereby almost inevitably be seriously
injured, even though the inevitable consequence of inaction would be
the child’s death from burning: the child was seriously injured. The
Commission assumes that the man who threw the child should not be
convicted of an offence of intentionally causing serious injury, stating
that if a definition of oblique intention is adopted according to which a
result cannot be intended if it was the actor’s purpose to avoid such a
result, it is a certainty that in the example provided there would not be
a conviction of intentionally causing serious injury to another.9 But this
argument is problematic. The example deals with a unique case in which
the actor acts in order to save the life of a child, and if the actor in these
circumstances should not be convicted, the decision not to convict
should be based on a justification or on an excuse, such as necessity or
duress of circumstances. For example, consider a case in which the
motives of the actor are not laudable: a person wishes to practise her
marksmanship. She puts an apple on the head of a child and shoots with
a gun intending to hit the apple, but knowing that it is practically certain
that she will miss and cause serious bodily harm to the child. If she
misses and serious bodily harm is caused to the child, a conviction for
intentionally causing serious bodily harm is required, but this will not be
possible if adopting Professor Smith’s definition of oblique intention or
that of the Law Commission. This is because in that example, if the actor
succeeds in achieving her purpose (hitting the apple), the injury to the
child will not be caused.

Justifications for the oblique intent doctrine

It seems, therefore, that the arguments for justifying the idea that a
result which it is the actor’s purpose to avoid cannot be intended are not
convincing. The proper way to deal with this question is to examine
whether the rationale for convicting, in the context of intention crimes,
where there is oblique intention, applies even to cases in which it is the
actor’s purpose to avoid the proscribed result. One possible rationale of
the law that oblique intention is sufficient for conviction in many
intention crimes is that the degree of moral culpability of an actor
increases in proportion to the degree of probability in which he foresees
the occurrence of the bad result. Therefore, when the actor foresees the
result as practically certain, a very high degree of culpability exists and it
is equivalent to the degree of culpability that exists in cases in which
there is a desire to cause the result. Hence, oblique intention is sufficient
for conviction.10 This rationale applies even to the type of cases discussed

9 See Law Commission, above n. 5 at 10.

10 Cf. S. Z. Feller, ‘The Knowledge Rule’ (1970) 5 Isr LR 352 at 359–60.

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in this article, since in these cases the proscribed result is foreseen as

practically certain, and therefore the degree of moral culpability may be
viewed as equivalent to that which exists in cases in which the actor
wants the result to ensue.
A second possible rationale for the doctrine of oblique intention is
that there is a common mental denominator between cases of direct
intention and cases of oblique intention because in both of them the
actor chooses to cause the proscribed result.11 A person who acts in order
to cause the proscribed result certainly chooses to cause it. A person who
does not act in order to cause the proscribed result but when he acts he
knows that there is a practical certainty that his action will cause the
proscribed result also chooses to cause that result. Therefore, the degree
of culpability that exists in cases of oblique intention is identical to that
which exists in cases of direct intention, and because of this oblique
intention is sufficient for conviction in many intention crimes. Now, it
might be suggested that in cases in which it is the actor’s purpose in
acting to avoid the proscribed result, it cannot be said that the actor
chooses to cause the proscribed result (because he acts in order to avoid
it) and therefore in such cases the actor cannot be considered as having
oblique intention. This argument is open to criticism. It should be kept in
mind that the discussion assumes that in cases in which the actor’s
purpose is to avoid the proscribed result, the degree of probability in
which the actor foresees the proscribed result is the same as in typical
cases of oblique intention, i.e. practical certainty. If the term ‘practical
certainty’ is understood so that in cases of practical certainty the actor
simply cannot hope that the result will not ensue, then the cases con-
sidered in this article cannot exist in reality.
However, Professor Smith and the Law Commission think that such
cases may exist in reality and therefore they should be understood as
assuming that in some cases of ‘practical certainty’ the actor can form a
hope that the result will not ensue. If so, in some of the typical cases of
practical certainty, the actor may also hope that the result will not ensue.
But in cases in which the actor forms such a hope, he should not be seen
as choosing to cause the proscribed result, and therefore should not be
convicted of an intention crime. Professor Smith and the Law Commis-
sion do not suggest that in such cases the doctrine of oblique intention
will not apply. Perhaps their approach is that in cases of practical
certainty, a hope that the result will not occur is not real enough to be
taken seriously. But if so, why should it be taken seriously in the cases in
which it is the actor’s purpose to avoid the proscribed result? It therefore
seems that either the doctrine of oblique intention should not be based
on the element of ‘choice’ or it should be said that in the cases discussed
by Professor Smith and the Law Commisssion there is also a choice to
cause the result and therefore the actor should be considered as having
oblique intention with respect to the result.

11 See R. A. Duff, Criminal Attempts (Oxford University Press: Oxford, 1996) 369; M.
Kremnitzer, ‘Comment’ in R. Gavison (ed.), Issues in Contemporary Legal Philosophy
(Oxford University Press: Oxford, 1987) 277, 286.

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Conclusion
It is submitted in conclusion that the rule concerning cases in which the
actor is practically certain that the proscribed result will ensue and the
actor’s purpose is to avoid the proscribed result should be (assuming that
such cases exist in reality) that the actor has to be considered as
obliquely intending the proscribed result.

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