On Intention: G.E.M. Anscombe & the English Criminal Law

Abstract

This thesis examines the treatment of intention in English criminal law through the framework of G. E. M. Anscombe’s Doctrine of Double Effect (DDE). Particular attention is given towards how appellate courts conceptualize intention and how such a conceptualization is presented to the jury. The thesis advances the claim that English appellate courts continually displace intention from a matter of practical reasoning and from the body of evidence into the domain of substantive law, and that this displacement gives rise to recurring instability in judicial reasoning and incoherence with a traditional understanding of intention. The research combines doctrinal legal analysis of appellate decisions from England and Wales with a philosophical examination of Anscombe’s Intention and “Modern Moral Philosophy.” The analysis proceeds in three phases. Phase I identifies early instability in jury directions and the conflation between foresight and intention. Phase II examines the development of the virtual certainty test and doctrines of secondary liability. Phase III traces the continued interaction between doctrines of murder, complicity, and intention, and the courts continue to struggle on matters of determining liability through agency versus outcome-based reasoning. The thesis engages with existing doctrinal scholarship on intention in criminal law and argues Anscombe’s account of practical reason helps explain why formulations of intention as something of substantive law, continue to be incoherent and unstable for jury guidance. On this view, the problem of how intention is conceptualized does not arise merely from imprecise jury guidance, but from the incoherence in converting the structure of practical reasoning into determinate substantive rules of law. The analysis shows that judicial formulations of intention are unsettling with the four conditions associated with DDE, namely the nature of the act, the agent’s intention, causality, and proportionality (or fairness). The research concludes that jury guidance should remain subject to interpretation. While this is unlike the methodology enjoyed by the natural sciences, it enables a juror to exercise his practical reason in evaluating the agent’s intention. These findings support policy recommendations for reforming jury instructions to emphasize the agent’s reasoning, clarifying the distinction between foresight and intention, and avoiding a mechanistic approach to intention. The paper then returns to broader questions of normative ethics, legal frameworks, and inquiries into the relationship between natural law and legal positivism.