The Law Commissions review of the law of intention

The Law Commissions review of the law of intention 'The Law Commission's review of the law of intention confirms the viewthat the English law of intention for murder is based upon an understanding that lacks in two opposite ways. First, as regards direct intention, the law is morally under-inclusive in that it places too much moral weight on a psychological conception of the required mental state. It therefore fails to recognise properly the issue and significance of the concept of 'indiscriminate malice'. Secondly, as regards direct and indirect intention, the law is morally over-inclusive, failing to differentiate culpable and non-culpable acts.'(Norrie, 2006) Critically discuss the above statement with reference to the doctrine of intention in relation to the crime of murder and the Law Commission's Consultation Paper Homicide (No.177, 2005). Before we commence our discussion, let us first be quite clear on what is meant by ‘direct intention’, ‘indirect intention’ and ‘indiscriminate malice’ in the context of the above statement. Intention literally means ‘aim or purpose that guides an action[1]’. Therefore, ‘direct intention’, in the context of murder, means an act committed with the direct purpose of killing, or causing serious harm to, another. This has been one of the mens rea requirements for murder as far back as the 17th Century[2]. Clearly, this precludes an intention to achieve another criminal purpose altogether, where the actor ought reasonably to have foreseen, but did not directly intend, the death of another to be a virtually certain result of his actions, e.g. the intention of a ‘person who places a bomb on a plane for the purpose of making an insurance claim in respect of property but who foresees as a virtual certainty the death or serious injury of those who are on the plane when the bomb explodes.[3]’ This is what Norrie refers to as ‘indiscriminate malice’; ‘malice,’ in that the actor intended to perform an illegal act, and; ‘indiscriminate,’ in that the actor paid little or no regard to the virtually certain consequences of his actions, namely the death of another. It has long been recognised that the law should bring actions of indiscriminate malice within the scope of the crime of murder, but that a strict requirement of ‘direct intention’ would fail to do so; ‘direct intention is simply ‘too narrow for the purposes of criminal responsibility[4]’. Thus, the concept of cognitive ‘indirect intention’ was born, introduced into English law in the case of Nedrick[5]. Such intention does not have to be direct, but can merely involve a degree of foresight which, if possessed, should warrant a conviction of murder rather than manslaughter, a crime which denotes a too low a degree of criminal and moral culpability for actions where the death of another is virtually an incidental certainty. This doctrine, in its current form, was laid down by Lord Lane CJ Nedrick[6] in 1986, and modified by Lord Steyn in Woollin[7]: â€Å"Where the charge is murder and in the rare case where the simple direction is not enough, the jury should be directed that they are not entitled to find the necessary intention, unless they feel sure that death or serious bodily harm was a virtual certainty (barring some unforeseen intervention) as a result of the defendant’s actions and the defendant appreciated that such was the case.[8]† Some commentators have argued, as Norrie does at the top of this paper, that such an extension has gone too far; whilst indiscriminate malice now clearly comes within the scope of this extended intention requirement for murder, which is a good thing, other actions are now also included under the crime of murder, crime which, due to the lack of criminal and moral culpability involved, would be more fairly labeled as manslaughter. An example of such an action being so unfairly labeled was provided by Lord Goff in the Nathan Committee Report by the House of Lords Select Committee on Murder and Life Imprisonment [9]: â€Å"A house is on fire. A father is trapped in the attic floor with his two little girls. He comes to the conclusion that unless they jump they will all be burned alive. But he also realises that if they jump they are all [virtually certain] to suffer serious personal harm. The children are too frightened to jump and so in an attempt to save their lives he throws one out of the window to the crowd waiting below and he jumps with the other one in his arms. All are seriously injured, and the little girl he threw out of the window dies of her injuries.† The Law Commission, in citing and analyzing this example, came to the conclusion that the father in this case should not be labeled a murderer. Under the concept of ‘indirect intention’ however, the father should be guilty of this second-degree crime. As Norrie notes[10], the Law Commission were forced to conclude that ‘indirect intention’, by focusing on the knowledge of the father rather than the wishes behind his actions, was morally over-inclusive, failing to differentiate correctly between culpable and non-culpable acts, i.e. between actions of indiscriminate malice, such as the insurance fraudster who blows up the plane with no regard to the life of those on that plane, and actions involving no malice, but which are indiscriminate in their effects, such as the actio ns of the desperate father in Lord Goff’s example above. In this paper I shall address these concerns in detail, concluding that a cognitive approach to intention may simply be unsuitable for the crime of murder; it fails to adequately demark the boundaries of culpability between this crime and that of manslaughter. I shall then examine the Law Commission’s Consultation Paper Homicide (No.177, 2005), and shall critically discuss their approach to these problems, concluding with an assessment of how successful these reform proposals would be in their aim of differentiating correctly between culpable and non-culpable acts, if implemented. As we have already seen from the examples discussed above, Norrie is quite right in his assertions; the requirement of direct intention is too focussed on the specific mental state of the actor with the effect that the charge of murder would be precluded for anyone other than an offender who either directly intended to kill his victim, or at least intended to cause that victim serious harm from which death was a reasonably foreseeable result. Likewise, the extension of this requirement to include indirect intention, whilst at least serving to bring crimes of indiscriminate malice under the scope of ‘murder’, also serves to bring other such actions under this label, actions which should only be considered manslaughter, in light of the lower degree of criminal culpability possessed by their perpetrators. In other words, it is not always fair to equate foresight of a virtually certain result with intention. Let us now look at the reforms to the doctrine of direct intention, which have been proposed by the Law Commission in their Report on Homicide[11], and assess to what extent these reform might actually serve to correct the current inadequacies: In this Report, the Law Commission make two different reform proposals; the first of these is to create a statutory definition of intention which avoids the problems of indirect intention being construed too widely by a jury; the second is to codify the existing common law doctrine of indirect intention, but to modify it so that the current problems of indirect intention can be avoided. Both of these proposals are therefore designed to rectify the problem of indirect intention being construed too widely, whilst at the same time allowing this doctrine to continue its prosecution of indiscriminate malice as murder where appropriate. The rationale behind both of these alternative proposals is to rectify the distinction which can, in exceptional cases, exist between intention, in its natural form, and intention implied by reasonable foreseeability/ virtual certainty. They reform proposals recognise that it is possible for an offender to have not intended a particular outcome, even though he or she may have realised that such an outcome was a virtually certain consequence of their actions. This is commonly known as the ‘Woolin[12]’ problem. Under the first proposal, the Commission have state that ‘It is crucial that a statutory definition of intention should not cause injustice, or absurdity, by deeming certain conduct to be intended when the circumstances show it to be otherwise[13]’. Thus, under this first proposal, the Commission propose to insert a proviso into a statutory definition of intention, i.e. ‘A person is not to be deemed to have intended any result, which it was his or her specific purpose to avoid.[14]’ This should not be seen as reinserting a motive assessment into that of intention, but rather to provide a means by which a jury will not be forced to convict someone of murder, in an exceptional case where that offender specifically did not intend to cause death even though he knew it would almost certainly result from his actions. Under the second proposal, the Commission suggest a codification of the current doctrine of intention, modified to take account of those exceptional cases where it would be unfair to equate foresight of a virtually certain result with intention, might be as follows. Such a formulation might read as follows: â€Å"(1) A person is to be regarded as acting intentionally with respect to a result when he or she acts in order to bring it about. (2) In the rare case where the simple direction in clause (1) is not enough, the jury should be directed that: they are not entitled to find the necessary intention with regard to a result unless they are sure that the result was a virtual certainty (barring some unforeseen intervention) as a result of the defendant’s actions and that the defendant appreciated that such was the case. (3) In any case where the defendant’s chance of success in his or her purpose of causing some other result is relevant, the direction in clause (2) may be expanded by the addition of the following phrase at the end of the clause (2) direction: or that it would be if he or she were to succeed in his or her purpose of causing some other result, and that the defendant appreciated that such was the case.[15]† This would have the effect of maintaining the current law in relation to virtual certainty, which as Lord Steyn pointed out in Woolin, â€Å"has [over a period of 12 years since Nedrick] apparently caused no practical difficulties,[16]’ whilst at the same time, limiting the doctrine of indirect intention so as to exclude those situations where an offender might have seen death as being virtually certain, but where he specifically tried to avoid it. This proposal purports to do this by providing the jury with more specific guidelines as to when they are entitled to infer indirect intention. Both of these reform proposals are encouraging; it would seem that the Law Commission is heading in the right direction at last. The first proposal specifically precludes the Woolin problem with the insertion of a provision which, although purportedly reintroducing a motive element to the doctrine of intention, can actually be used to ensure that intention is not implied where it would be unfair to do so. The second is less specific, but purports to achieve the same ends by clarifying the necessary circumstances in which indirect intention should be implied. In conclusion, I would favour the first proposal for the following reason; the second proposal will only slightly modify the doctrine of indirect intention, and will only slightly limit its scope. The proviso contained in the first proposal however, is, as yet, unlimited in its scope, and as such, can be used by a jury to greater effect. This may have the result of reverse injustice, i.e. offenders who should morally be guilty of murder escaping this label for the lesser conviction of manslaughter, but I feel that it will so significantly decrease the chances of the reverse occurring, i.e. offenders who should only be found guilty of manslaughter being labeled as a murderers, that such a risk is justified; after all, it is more important to encourage this latter phenomenon than it is to prevent the former from occurring at all costs, especially in light of the huge sentences which are imposed on those offenders convicted for the crime of murder. Bibliography: Law Commission's Consultation Paper Homicide (No.177, 2005) Nathan Committee Report, Report of the House of Lords Select Committee on Murder and Life Imprisonment (HL paper 78-1, 1989). A Ashworth, Principles of Criminal Law (4th ed 2003) A Norrie, â€Å"Subjectivism, Objectivism, and the Limits of Criminal Recklessness† (1992) 12 OJLS 45. A P Simester, â€Å"Why Distinguish Intention from Foresight?’† in A P Simester and A T H Smith, Harm and Culpability (1996) 71. Williams, G. (1955) The definition of Crime Current Legal Problems 8, 107-30 Smith, A. H. (2004) 'Criminal Law: The Future' Criminal Law Review, Dec, 971-80 1 Footnotes [1] A definition provided by the Oxford English Dictionary. [2] See Lord Coke’s classic definition involving ‘malice aforethought’. [3] Law Commission Report: Homicide [No.177; 2005] para 4.6 [4] Ibid, para 4.6 [5] 1986 (83) Cr App R 267 [6] ibid [7] [1999] 1 AC 82. [8] [1999] 1 AC 82, at 96 [9] Lord Goff in the Nathan Committee Report, Report of the House of Lords Select Committee on Murder and Life Imprisonment (HL paper 78-1, 1989). [10] In the statement at the top of this paper, A. Norrie states: 'The Law Commission's review of the law of intention confirms the viewthat †¦ indirect intention†¦ is morally over-inclusive, failing to differentiate culpable and non-culpable acts.' (Norrie 2006) [11] Report No. 177; 2005 [12] In this case, D had a grudge against a woman and had threatened to ‘burn her out’. One night he poured paraffin through her letterbox and set it alight. One of the women dies in the fire. When asked why he did it, he replied ‘to wake her up and frighten her’. Here, he did not intend to kill the woman’s but the question is therefore whether or not he saw such a result as virtually certain. [13] Ibid, para 4.42 [14] Ibid, para 4.50 [15] Report No. 177 2005 para 4.69 [16][1999] 1 AC 82. at 94

The Management of 21st Century: Hong Kong Essay -- essays research pap

Hong Kong is the most suitable place for business. It is characterized by its high degree of internationalization, business friendly environment, rule of law, free trade and free flow of information, open and fair competition. Therefore, the business management is a very important part in the business. The management of Hong Kong includes the external environment and the internal environment. The external environment includes the economic environment, labour market and social environment. In the economic environment, Hong Kong has faced the Asian financial turmoil in 1997. But now, the overall economic condition progressively improved. Later, China will be a member of the World Trade Organization (WTO). Hong Kong will gain a lot of business opportunity in different trades, such as banking, insurance, telecommunication. Those businesses need the new management for their future. For example, they must plan the new organization ¡Ã‚ ¦s goals, or they estimate the demand of human resources in the future. However, this phenomenon will disappear very soon when China would be a member of WTO after two years. It is because Hong Kong may not be the intermediate between China and the world since China will open their market for the world. Therefore, the Hong Kong companies may plan how to reduce the labour supply within an organization at that time. In the labour market, manpower is Hong Kong ¡Ã‚ ¦s most treasured asset. Because of much labour supply, it does no...

The Forest Management

Forest management is the maintaining and management of not only the trees in the forest, but the streams, habitat, watersheds, and even the decaying trees or logs on the forest floor. Managing our forests is not only important to the wildlife, but to our future economy and way of life. We need to continue to save the Oregon forests and help the ecosystems within them because human beings are also part of the ecosystem. By using forest management, it can help certain species of wildlife. Some species of birds, such as the pileated woodpecker, which need large snags to build nest cavities(7). But the worst possible approach to maintaining a wide diversity of species would be to manage every acre of the forest the same way. Any change in forest habitat creates â€Å"winners† and â€Å"losers. † As forests go through natural cycles of growth, death and regeneration, species may inhabit or be absent from a given area partly in response to natural changes in the structure of trees and other forest vegetation(4). The same occurs when forest stands are managed by humans. Unless future credible research indicates otherwise, effort should be made to manage a wide range of forest structures. Maintaining diversity would be best served by using a broader range of management tools. Those would include harvesting on federal land – not simply thinning – and increasing the commitment to old-growth attributes on private forest land through techniques such as retaining large trees and snags. As long as federal lands are substantially committed to providing late successional habitat, private forest land can be substantially committed to younger, intensively managed stands, provided critical habitat characteristics are available. The federal lands make up more than 50% to 60% of the forests in Oregon(3). Because timber harvest in now dramatically reduced on federal lands, those lands represent a sizable, well distributed pool of both old-growth forests and forests that could become old-growth, providing habitat to those species associated with forests with old-growth characteristics. While a large portion of federal land is committed to sustaining species that need old-growth, the difficult question remains, how much is enough? Leaving these forests completely unharvested invites unacceptable, large-scale insect infestations and catastrophic fires(6). Because federal lands comprise nearly 50 to 60 percent of Oregon†s orests, practices on these lands have a major impact on forest-dwelling vertebrates(2). These lands are well distributed throughout the state. Private land ownership accounts for approximately 40 percent of the states forests(5). Of this private ownership, over half is in industrial ownership and the rest is held mostly by small woodland owners(7). Since 1992 harvesting on federal lands has dropped sharply. In contrast, many industrial private lands are intensively managed(6). Oregon law requires prompt replanting, and stands are often fertilized and thinned. This split ownership, in addition to diverse management practices on private lands, results in a wide range of habitat conditions. No species studied appears immediately threatened by forest practices in Oregon(3). In fact, many species are abundant. While that finding appears hopeful, it does not ensure that these will not be future problems. Current practices may not be adequate to keep the present range of species in the future. While some species thrive in the habitat provided by younger forest stands, a considerable number of species either requires, or reproduces etter, where large live trees, large cavities, and large pieces of downed wood The Oregon Forest Practice Act currently requires that some trees be retained after harvest. But the question is: how much is enough? Will trees being retained be sufficiently distributed to meet the future habitat needs of all vulnerable species? For example more than 60 species are associated with downed wood such as; fallen decaying trees or logs, 14 of them considered at risk(8). One species would be the rough skinned newt which live in and around decaying wood. Few studies to date have focused specifically on intensively anaged stands where old-growth characteristics, such as large snags and large pieces of decaying wood, are most likely to be in short supply. However, research is looking toward this need. Harvest levels in the future will likely be at least 40 percent below what could be cut on a sustainable level(1). That†s because of reduced exaggeration on timber production on federal lands. In the past, federal land provided half the states timber production, but in 1996 provided only 17 percent(2). That is the lowest level since 1934, in the depths of the Great Depression. An nderstanding of Oregon†s timberland and its importance to the state†s economic and social well being, particularly in rural areas. In Oregon, reforestation is mandatory and carefully spelled out in the Oregon Forest Practice Act, which governs all management related activities in Oregon†s privately owned forests. Private lands must be replanted within two planting seasons of harvest, and within six years of harvest, the site must be certified as free to grow, meaning the trees have topped the brush and can grow successfully. If the replanting job fails, the state can compel compliance ith the act through civil penalties, including civil court action and fines of up to $5,000(3). More than 90 percent of harvested forested acres are replanted to stocking levels that meet of exceed what is legally required. So in order to help our forests, we need to continue with what is being done today. The hard work that is being put into saving the forests habitat, the streams, and the trees themselves may not show in the short-run but will have dramatic effect in the long-run. Wood products remain an important component of Oregon†s robust economy and contribute to the long-awaited diversification of the state†s economy.

Lorraine Hansberrys A Raisin In The Sun - Dignity and...

Dignity and the American Dream in A Raisin in the Sun The American Dream, although different for each of us, is what we all aspire to achieve. In Lorraine Hansberrys, play, A Raisin in the Sun, each member of the Younger family desperately hopes for their own opportunity to achieve the American Dream. The American Dream to the Younger family is to own a home, but beyond that, to Walter Younger, it is to be accepted by white society. In the book entitled Advertising the American Dream, Roland Marchand refers to the American Dream as the belief that if you work hard and play by the rules, then you will achieve your goals (Marchand 1). In the play, Walter Lee Younger does not do either one of these things. Walter†¦show more content†¦Unconsciously, Walters American Dream is to assimilate into the mainstream and become a part of the affluent hegemony. Walters frustration festers and his anger turns inward towards his family who, in Walters eyes, do not understand him. Walters family members do understand him and they also want to amass material dreams, but Walters family members know that it is going to take work to get there. Walter begins to drink, stay away from home, and to constantly argue with his wife, Ruth. Walters life is contrasted by the role of his recently widowed mother, who holds to more traditional values of acceptance of lifes lot and of making the best of any situation. Walter Lees Mama holds Walters father up as an example of a man with pride and a man that, despite racial injustice in a dualistic society, worked hard to provide for his family. This adds to Walters frustration. Walter now feels incapable and small in his mamas eyes. Mamas inheritance of ten thousand dollars left by her deceased husband provides fodder for conflict in the family. Each of the family members, envisioning their own American Dream, has an idea of how the inheritance should be spent. All of these ideas, of course, conflict with Walters get rich quick scheme. Mama, Ruth, and Travis all have the dream of moving to their own home with a white picket fence, a garden, a place for Travis to play outside and a bathroom that is not shared by otherShow MoreRelatedThe Great Playwright s Life Story2415 Words   |  10 PagesBefore the relatively short life of Lorraine Hansberry tragically ended, the African-American playwright distinguished herself in American theatre and literature as she creatively and unknowingly challenged the views of African-American life, among other inescapable issues of the nation and the world, on the theatrical stage. The great playwright’s life story began on May 19, 1930. Although born during a time of hards hip introduced by the Great Depression, Hansberry grew up rather comfortably inRead More Racism and the American Dream in Hansberry’s A Raisin in the Sun1340 Words   |  6 PagesA Raisin in the Sun is written by a famous African- American play write, Lorraine Hansberry, in 1959. It was a first play written by a black woman and directed by a black man, Lloyd Richards, on Broadway in New York. The story of A Raisin in the Sun is based on Lorraine Hansberry’s own early life experiences, from which she and her whole family had to suffer, in Chicago. 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Drama of A Raisin in the Sun (1959) brought Hansberry to the Award Society of New York Critics as the best play of the year. A Raisin in the Sun shows the life of an ordinary African-American family which dreamsRead MoreComplexity of Privilege and Domination1682 Words   |  7 PagesThe Complexity of Privilege and Domination Privilege always occurs at the expense of others. Allan Johnson states, â€Å"The trouble we’re in privileges some groups at the expense of others. It creates a yawning divide in levels of income, wealth, dignity, safety, health, and quality of life† (Johnson 7). Allan Johnson states this in Chapter 1 of his book Privilege, Power and Difference and it is one of the most powerful statements in the whole book. Privilege creates a great divide between people