Consultation Paper on Inchoate Offences - Law Reform Commission

activity. Purposive activity is intentional activity. If attempt in criminal lawkeeps to intentional activity it will, in this respect, keep close to the ordinarymeaning of attempt.2.95 This is not the end of the argument, but it does provide a defaultposition such that in the absence of persuasive reason suggesting otherwise,criminal attempt should conform to its ordinary meaning.(iii)Oblique intention2.96 The foregoing analysis is complicated by a consideration ofoblique (or indirect) intention. An actor obliquely intends something when,though it is not their aim to bring it about, they know it is practically certainto be a consequence of their action. There is much debate over how exactlyto define oblique intention and there is an issue of the scope for obliqueintention to slide into a form of recklessness. This is what the House ofLords were concerned to counter in R v Woolin 138 where a consequence mustbe foreseen as a virtual certainty of an action in order for it to have beenobliquely intended. Does the intentional activity connoted by the ordinarymeaning of attempt encompass any sort of oblique intention as distinguishedfrom direct intention? The answer may well be that it does not. Even whenoblique intention is described with maximum effort to distinguish it fromrecklessness, as per the House of Lords in Woolin, it still falls outside thekind of intention envisaged in the ordinary meaning of attempt. The personwho plants a bomb set to explode on an aeroplane during flight, hoping toprofit from an insurance pay-off, has the purpose to defraud, not to kill. Ifhis purpose is not realised, we say he tried and failed to do something. Andthis something is the fraud, not the causing of deaths. 1392.97 The question is whether criminal attempt should depart somewhatfrom the ordinary meaning of attempt in order to have oblique intention aswell as direct intention constitute its mens rea? There is good reason to doso. In terms of culpability and harm there is little between the person whoblows up the aeroplane for monetary gain and the person who blows it up asan act of terrorism. 140 So if the bomb does not explode – it‟s discovered anddefused say – the rationale of inchoate offences is pursued by having the lawsuch that attempted murder could be charged rather than just attempted theft(leaving to one side the host of other offences, possession of explosives andso on, that may have been committed in the example).138139140[1999] 1 AC 82, At 145.Ashworth Principles of Criminal Liability (5 th ed Oxford University Press 2006) at177.See Hart “Intention and Punishment” in Hart Punishment and Responsibility (OxfordUniversity Press 1968) at 126-127.52