chapter  3
Between orthodox subjectivism and moral contextualism: intention and the Law Commission report
Pages 18

In the Law Commission’s Consultation Paper entitled ‘A New Homicide Act for England and Wales’ (2006), the concept of intention plays a central symbolic and legal role. The symbolic role is that intention represents the most culpable mental state, and therefore is the most appropriate one to place at the heart of the law of murder, the most serious crime. In the Law Commission’s proposals, this means that intention to kill, and only intention to kill, must be at the core of the new concept of first degree murder. The more directly legal role is seen in working out the nature of intention in Part 4 of the consultation paper, where two possible definitions of intention are proposed, and the doctrine of double effect is considered. In this comment on the role of intention in the paper, I will focus on how these

aspects interconnect, and I will consider some of the problems revealed as a result of the symbolic master role that intention plays in this area of the law. My comments will be organised in three sections. In the first, I will consider the main themes that structure the Law Commission’s view and which accordingly place intention at its core. In the second, I will consider whether intention can have the primary role the Law Commission gives it by reflecting on the concept of practical indifference with which the Law Commission also works, but at the level of second, not first, degree murder. In the third, I will consider the two views of intention developed in Part 4 of the report, and their relationship to the doctrine of double effect. In reviewing these matters, two linked themes emerge. The first concerns the

relationship between the political and moral aspects of judgments about criminal responsibility for murder. Lawyers and legal theorists all too frequently think that there is a direct link between the moral understanding of an event and how it should be categorised in law. Legal categories should essentially reflect moral judgments of wrongdoing. However, legal categories only indirectly distil moral issues, which they mix with other considerations in a process of political, statebased judgment. In homicide law, this is particularly relevant given the existence of the mandatory life sentence for murder. Such a penalty, with its historical roots in the practice of capital punishment, operates as a highly contestable political vision, albeit in attenuated form, of the ultimate power of the state over the citizen.