judgements, in which both elements exist together. It is necessary to know the moral quality of what has been intended by the defendant to judge intention1.
3. Distinguish Intention from foresight
The criminal law endorses the distinction between the intended actions and the foreseen actions. It has been argued by Finnis that intention should only mean and be defined as ‘purpose’, meaning that intention and foresight should be kept separate2. He commented on the case of Woollin3 that a foreseen virtually certain result should be found to be ‘intended’ even though it was not part of defendant’s purpose. “Side effects, in the sense relevant to morals and law, are effects which are not intended as end nor as means in the plan adopted by choice. What state of affairs are means and what are side-effects depends on the description which they have in the proposal or plan adopted in the choice which brings them about, i.e., in the clear-headed reasoning which makes that plan seem a rationally attractive option.4”
Nevertheless, by separating these two concepts, we would benefit from clarity. As once accepted that there is a sense in which a person intends a result merely because it is foreseen as virtually certain or very likely it could become very challenging to make a distinction between intention and foresight. However, one might argue that clarity is not the only goal of the law, as, for example, clarity does not always entail fairness.
Foresight would not fit with an ordinary meaning of intention. For example, Joshua drank a lot during the night out. However, he did not intended to become hungover. Thus, Finnis considers oblique intention theory as ‘pseudo-masochist’ in nature because it “holds those who foresee that their actions will have painful effects on themselves intended those effects”5.
Perhaps in the cases similar to Petto6, where arguably there is a moral difference between two concepts of foresight and intention. Lord Eassie stated that Petto “must be held to have foresight of virtual certainty, or obviousness, of the
1Norrie, A. (2000). Crime, Reason and History. 2nd ed. London: Butterworths, p.59.
2 J Finnis “Intention and Side-effects” in Frey R G, Liability and Responsibility
3R v Woollin 1999 1 Cr App R 8
4J Finnis “Intention and Side-effects” in R G Frey, Liability and Responsibility 1991 p.42
5J Finnis “Intention and Side-effects” in J Finnis, Intention and Identity: Collected Essays Volume II 2013 p.183
6Petto v HM Advocate 2009 SLT 509