Authored By: Shaunak Chakraborty
United Arab Emirates
Introduction
Conditional intent is found at the intersection of two opposing thoughts. The first is that an individual who has decided to commit a crime, even if that decision depends on some future condition, crosses the legal threshold enough for the law to act. The second is that requiring proof of intent for an event that has not taken place risks either speculative liability, or conversely, a loophole that allows genuinely guilty conduct to slip through simply because the precise object of intention cannot be specified. English law’s answer to this issue has never been entirely consistent. In property offences, courts initially stated that conditional intent defeated a direct conviction, but later retreated to a compromise depending on how the indictment would be framed.[1] In offences against the person, conditional threats are dealt under the law of defences rather than a mens rea issue.[2] In United States federal law, the Supreme Court and Model Penal Code take a different approach by accepting conditional intent in a broader and more explicit manner.[3] This article traces that history and argues that English law would benefit from adopting a clearer rule, similar to that of the Model Penal Code’s approach.
Historical & Legislative Background
The modern law of theft is defined by the Theft Act 1968, s1(1) of which requires dishonest appropriation of property belonging to another “with the intention of permanently depriving the other of it.”[4] S6(1) extends that intention to situations in which a defendant considers property as their own to dispose of regardless of the owner’s rights,[5] but it does not, on its face, explain what happens where the defendant’s intention to appropriate is contingent on a fact not yet known to them. Parliament did not anticipate the conditional intent issue when drafting the 1968 Act. The problem is a judicial construct, arising from the conflict between the subjective mens rea requirements of theft and the practical reality that thieves rarely decide in advance about the specific object they steal.
Attempt offences present a similar history. The Criminal Attempts Act 1981 s1(1) provides that a person is guilty of an attempt when, with intent to commit an indictable offence, they perform an act more than merely preparatory to the commission of the offence.[6] S1(3) implies that for the purposes of establishing intent, the facts must be treated as the defendant believed them to be.[7] Neither sections explicitly resolve whether an intention conditional on finding something worth stealing amounts to an intent to commit the offence. That gap was left for the courts to decide on, principally through a sequence of Court of Appeal decisions in the 1970s.
Offences against the person raise a different structural issue. When a defendant threatens serious violence only on condition that the victim does not comply with their demand, for example a threat to kill made to turn away an intruder, the substantive offence under the Offences Against the Person Act 1861 s16 is usually made out on the facts. The real legal question is not whether the intent was conditional, but whether a defence such as self-defence applies to what would otherwise be a completed offence.[8] Conditional intent therefore functions differently depending on where in the offence it shows up, such as the actus reus, mens rea, or even the defence.
III. Case Law Analysis
The foundational case in theft is R v Easom, where the defendant picked up a woman’s handbag in a cinema, dug through its content, and replaced it once he realised there was nothing worth taking.[9] The CoA quashed his conviction for theft of the bag, holding that intending to steal something only if it turns out to be valuable is not enough, on its own, to prove intent to permanently deprive the owner of the specific items charged.[10] Edmund Davies LJ’s reasoning was that the prosecution had failed to prove the required intent in regarding the exact property named in the indictment. Later commentators understood this to be a drafting issue rather than a rejection of conditional intent as a form of mens rea altogether.
That reading was initially reinforced in R v Husseyn, where the Court of Appeal quashed a conviction for attempted theft of sub-aqua equipment, on the basis that intending to steal only if the goods proved worth stealing was not a present intention to steal the alleged items.[11] Lord Scarman’s observation that a person who intends to steal only if what they find is worth stealing cannot be said to have a present intention to steal became, for a period of time, the standard way of describing the “unspecified incident” problem.[12]
The CoA changed their position in Attorney-General’s References (Nos 1 and 2 of 1979),holding that conditional intent to steal is sufficient enough for an attempted theft conviction, as long as the indictment is drafted to match the conditional nature of the intent.[13] For example, charging an attempt to steal “some or all of the content” of a bag, rather than naming a specific item. This ruling effectively neutralised Easom and Husseyn, thereby rendering that liability no longer depended on whether the defendant’s intent was conditional, but whether the prosecutor had used the correct wording for the charge. The same method was applied to burglary, where the entry as a trespasser with the intent to steal “anything worth stealing” satisfies the intent required under s9 of the Theft Act, as long as the charge is worded precisely.[14]
In the case for violence offences, R v Cousins displays an alternative approach. The defendant, having been assaulted and having reasonable grounds to fear further violence, threatened to kill his attackers if they came back. The CoA held that a conditional threat to kill can still fall under the scope of self defence or the prevention of crime, as common law and statutory defences under s3 of the Criminal Law Act 1967 apply equally whether the threat was intentional or not.[15]Cousins therefore shows that conditional intent is not merely a mens rea issue. In violence offences, it is considered with the defence instead, with the conditionality of the threat affecting the reasonableness, rather than to the existence of the intent itself.
Comparative Jurisprudence
American law offers a useful comparison, as it states the underlying principle directly rather than relying on the way indictments are drafted. The Model Penal Code, s2.02(6) provides that where a particular purpose is an element of an offence, that element is still satisfied even if the purpose is conditional, unless the condition cancels out the very harm the relevant law is trying to prevent.[16] The Supreme Court took this approach in the case of Holloway v United States, holding that the federal carjacking statute’s requirement for intent to cause death or serious bodily harm was met by the defendant who intended to shoot the victim only if they resisted.[17] Justice Stevens, writing for the majority, explained that Congress could not have meant to exclude the classic case of an armed robber whose threat of violence is conditional on the victim’s compliance.[18] Justice Scalia disagreed in his dissent, arguing that someone who intends to kill only if resisted, really has an intent to kill-if-resisted, not an intent to kill, and the majority’s reasoning in this case risked blurring the lines between conditional and unconditional intent throughout the criminal code.[19]
This comparison is instructive because English law has reached a broadly similar position as Holloway, in that conditional intent is generally sufficient. However, English law has developed this position through rules of indictment specificity rather than a single statutory rule. The Model Penal Code provides a clearer approach by establishing one general rule, subject to an important limitation being that the condition attached to the defendant’s intent must not remove the harm the offence is intended to prevent. English law by comparison has dealt with this issue by requiring separate accommodations to be worked out offence by offence such as theft, attempt, burglary and threats to kill.
Critical Analysis
Looking at the case law as a whole, English courts show a discomfort with tackling conditional intent directly. Academic commentary has been consistently critical of the “unspecified indictment” solution developed by the Attorney-General’s References. Campbell argued that the courts were essentially making a policy decision disguised as a rule about drafting charges, instead of actually deciding what “intention” means when its object is uncertain.[20] Child made a similar relation, but with sharper criticism. He argued that courts and academics have treated conditional intent as a special, more troublesome category, when in reality any intention about future conduct is conditional in the same basic way. Treating it as unusual, he said, is what has caused the inconsistency in this area of law.[21]
There is a deeper problem present too, beyond just how the courts have reached this point. English law treats the same underlying issue, a purpose depending on some future condition, differently depending on the offence involved. In theft and attempt, conditional intent is presented as a mens rea question and solved through the technicality of how the charge is drafted. In violence offences, it is dealt through a defence approach instead, where it is only concerned with whether the defendant’s conduct was reasonable, and not whether they had the necessary intent in the first place. The result is inconsistent as sometimes a defendant’s conditional state of mind may determine the guilt outright whereas in other cases, it is barely relevant unless the defendant actively raises a defence.
The Holloway approach, and the Model Penal Code rule behind it, arguably solves this issue by giving English law a single organized principle it currently lacks. Instead of asking whether the charge was drafted around the contingency, it asks a direct question: does the condition attached to the defendant’s intent cancel out the very harm the offence exists to prevent? Someone who intends to steal something only with the condition that something valuable can be found still intends exactly the harm that the offence of theft seeks to prevent: dishonestly appropriating property belonging to another. The contingency is only concerned with the property, not with the actual harm being done. If English law adopts a similar rule, through an amendment to the Theft Act 1968 and the Criminal Attempts Act 1981, or a Law Commission restatement, the courts can stop relying on the indictment-drafting fix from the Attorney-General’s References and instead decide these cases based on the wrongdoing and culpability of the defendant.
Conclusion & Suggestions
Conditional intent is not a minor issue in English law, it recurs across theft, burglary, attempt and offences against the person. The courts’ response has been improvised rather than systematic. Easom, Husseyn and the Attorney-General’s References together produce a workable but conceptually thin rule for property offences depending on how prosecutors happen to frame the indictment. Cousins shows that, in the context of violence offences, where conditionality gets handled through defence rather than mens rea at all. The result is a body of law that mostly reaches sensible outcomes, but there is no unifying explanation for why a conditional purpose should, or should not count as intent in a given offence.
Holloway and the Model Penal Code provide a better path, a general statutory rule stating that conditional purpose always counts as intent unless the condition cancels out the specific harm the offence targets. Such rules, whether introduced by Parliament or the Law Commissions as part of a wider codification effort, would let English law to drop the indictment-drafting workaround it has relied on since 1979, replacing it with a more substantive test that applies consistently across offence categories.
Bibliography
Primary Sources
Cases
Attorney-General’s References (Nos 1 and 2 of 1979) [1980] QB 180 (CA)
R v Cousins [1982] QB 526 (CA)
R v Easom [1971] 2 QB 315 (CA)
Holloway v United States 526 US 1 (1999)
R v Husseyn (1977) 67 Cr App R 131 (CA)
R v Walkington [1979] 1 WLR 1169 (CA)
Legislation
Criminal Attempts Act 1981
Criminal Law Act 1967
Model Penal Code (United States)
Offences Against the Person Act 1861
Theft Act 1968
Secondary Sources
Articles
Campbell K, ’Conditional Intention’ (1982) 2 Legal Studies 77
Child J, ’Understanding Ulterior Mens Rea: Future Conduct Intention is Conditional Intention’ (2017) 76(2) CLJ 311
[1] Attorney-General’s References (Nos 1 and 2 of 1979) [1980] QB 180 (CA)
[2] R v Cousins [1982] QB 526 (CA)
[3] Holloway v United States 526 US 1 (1999); Model Penal Code s2.02(6)
[4] Theft Act 1968, s1(1)
[5] Ibid, s6(1)
[6]Criminal Attempts Act 1981, s1(1)
[7] Ibid, s1(3)
[8] Offences Against the Person Act 1861, s16; Criminal Law Act 1967, s3
[9] R v Easom [1971] 2 QB 315 (CA)
[10] Ibid 319 (Edmund Davies LJ)
[11] R v Husseyn (1977) 67 Cr App R 131 (CA)
[12] Ibid 132 (Scarman LJ)
[13] Attorney-General’s References (Nos 1 and 2 of 1979) [1980] QB 180 (CA)
[14] R v Walkington [1979] 1 WLR 1169 (CA); Theft Act 1968, s9
[15] R v Cousins [1982] QB 526 (CA); Criminal Law Act 1967, s3
[16] Model Penal Code s2.02(6)
[17] Holloway v United States 526 US 1 (1999)
[18] Ibid 11 (Stevens J)
[19] Ibid 20-21 (Scalia J, dissenting)
[20] Kenneth Campbell, ‘Conditional Intention’ (1982) 2 Legal Studies 77
[21] John Child, ‘Understanding Ulterior Mens Rea: Future Conduct Intention is Conditional Intention’ (2017) 76(2) CLJ 311
