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Intention and Punishment

All civilized penal systems make liability to punishment for at any rate serious crime dependent not merely on the fact that the person to be punished has done the outward act of a crime, but on his having done it in a certain state of frame of mind or will. In this blog I will mainly explain or elaborate; how most of the countries in criminal law allocates to the idea of intention, as one of the principal determinants both of liability to punishment and its severity.


In English law and in other legal systems intentions or something like it, is relevant at two different points. It is relevant at the first stage before conviction when the question is ‘can this man be convicted of this crime?’, even if in fact he will actually not be punished. At this stage Mens Rea is actually not sufficient or necessary. I feel that it is not always sufficient, because sometimes duress or provocation or certain forms of mental abnormality may become relevant, and in such cases the accused may not be convicted for a particular crime even if he intended to do the act forbidden by law.


Intention is also relevant when the stage of conviction is past and the question in front of us is,’ how severely is the accused to be punished?’ This stage is known as the stage of sentencing, as distinguished from conviction. Wounding with intention to kill (even though the victim is not killed) or wounding with intention to resist arrest, is punishable with the maximum penalty of life imprisonment and or in most severe cases of unlawfully and maliciously wounding a man the maximum penalty is five years.


What, after all, is a man’s intention? This is a question quite apart from the law, philosophers have found both intriguing and enormously difficult to answer. According to me the notion of a man’s intention is relevant to his criminal responsibility at many important points, what they refer to is the use by the law of a concept which, though it corresponds at many points to what is ordinarily meant in non-legal use by intention, cannot be said to be identical with it. Some legal writers extend the use of the word ‘intentionally’ to cases where the consequences are thought likely, and reserve ‘recklessly’ for the cases where a man does not assess the consequences as likely.

Intention can be divided into three-related parts, to which I shall give what I hope three explanatory terms; i) intentionally doing something, ii) bare intention, iii) doing something with a further intent. There are three examples of these aspects; supposedly a man has committed a crime so far as the outwards movements of his body is concerned which he has made; he has for e.g., fired a gun at and thereby wounded or killed another man. On these facts the question then arises, ‘did he kill or wound him intentionally? The answer to this question would be ‘yes’, the further evidence showcased that he wounded or killed the man accidentally owing to a mistaken belief that the gun was unloaded and so he did it unintentionally.


Another example for the second aspect is, a man gets into a dwelling house at night; now the question is not or merely ‘did he do that intentionally? ‘but did he do that with further intention of stealing something’? if so, he is guilty of burglary, even if in fact he did not steal anything. Many statutory crimes are framed in terms of such further intents, including the crime mentioned of wounding with intent to kill, or with an intent to resist arrest, as contrasted with a simple ‘malicious’ wounding which is subjected to the considerations is equivalent merely to intentionally wounding.

The third aspect example would be, a landlord’s right to eject a tenant on the termination of a lease may depend on the question whether he intended before its expiration to reconstruct the premises.


Consider these all aspects in this way; the facts of a famous Victorian case, R.V. Desmond Barrett and others. In 1868 there lay in jail two Irish Fenians, whom the accused attempted to liberate. Barrett dynamited the prison wall outside the area where he mistakenly believed they would be at exercise. Though the plot failed, the explosion killed some persons living nearby. Now the question which arises is ‘did he kill those men intentionally?’ Generally speaking in my opinion, so far as any question like that of intentionally harming is concerned, the law, though it may also be content with less, is content to hold a man guilty if the harmful consequence, e.g. death, was foreseen by the accused in the sense that he believed that it would come about as a result of some voluntary action on his part. The point to be observed here is that, for the law, a foreseen outcome is enough, even if it was unwanted by the agent, even if he thought of it as an undesirable by product of his activities and in Desmond case this is what the death of those killed by the explosion was. he was convicted on the ground that it was not his intention to kill any of them but on the ground that he foresaw their death or serious injury.


As everyone knows, a bare intention to commit a crime is not punishable by English law. My own belief is that in the form of retributive theory, appeals to something with deeper instinctive roots than any other theories or principles. Certainly the resentment felt by a victim actually injured is normally much greater than that felt by the intended victim who has escaped harm because an attempted crime has failed.


Author Details: Kanishka Bhati (OP Jindal Global University; Jindal Global Law School)

The views of the author are personal only. (if any)




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