Effect of intentions
25/01/2005 The Star Articles of Law with Bhag SinghThe word “intention” has a whole range of applications
in different situations. In many cases it is an element of an offence or a
civil wrong, which may be the subject of adjudication before a tribunal.
In this connection there are situations in which a person gets away
because of the absence of intention. A reader asks how far intention is
important in legal matters and the scope of the word.
For this purpose it is necessary to take a broad view of the word and what
it actually encompasses. The role that intention plays depends on the
context in which it is used. Its non-existence can sometimes result in a
wrongdoing not being regarded as such. On other occasions its existence
could be relevant in aggravating the damage or mitigating the loss.
The Little Oxford English Dictionary states the meaning of intend as “have
something as your aim or plan” or “plan that something should be done, do
or mean something”. It also means to “design or plan something for a
particular purpose”.
The word came into use in the context of traditional criminal offences,
which are defined and constituted, based on the concept of actusreus and
mens rea. In such cases in order to establish a wrong there must be an act
which constitutes a wrong and a state of mind indicating a desire to
commit such wrong. If neither of these elements is present, an offence
would not be constituted.
In the Dictionary Of Law third Edition, L.B. Curzon Actusreus has been
referred to as a phrase referring to elements of the definition of an
offence (save those which concern the condition of the mind of the
accused), such as his conduct, its results and surrounding circumstances.
Mens rea, on the other hand is translated as “guilty mind” or “wicked
mind”. More accurately, “criminal intention, or an intention to do the act
which is made penal by statute or by the common law”.
In our country, the traditional criminal offences are contained mostly in
the Penal Code, which is comprehensive. It does not define the meaning of
intention but makes provision for the effect of intention. Section 80
states: “Nothing is an offence which is done by accident or misfortune,
and without any criminal intention or knowledge, in the doing of a lawful
act in a lawful manner, by lawful means, and with proper care and
caution.”
After that Section 81 goes on to say: “Nothing is an offence merely by
reason of its being done with the knowledge that it is likely to cause
harm, if it be done without any criminal intention to cause harm, and in
good faith for the purpose of preventing or avoiding other harm to person
or property.”
In the same section there is an explanation that it is to be a question of
fact whether the harm to be prevented was of such a nature and so imminent
as to justify the risk of doing the act with the knowledge that it was
likely to cause harm.
However in addition to the more traditional criminal laws that are mainly
in the Penal Code a large number of statutes have been enacted to regulate
commercial transactions and the control of non-commercial dealings.
Most of these laws, such as the legislation relating to road traffic, do
not in most cases require an intention for purposes of constituting an
offence. If one fails to stop at a traffic light when the light is red it
is immediately an offence and intention does not become a consideration in
any way.
Similar statutes also regulate many other aspects of present-day life and
do not require any need for an intention before an offence is deemed to
have been committed. These have come to be known as statutory offences
though this does not convey the entire picture of the situation.
In civil law, intention may be said to have a somewhat different or lesser
role to play as an indispensable element of wrongdoing. Thus in the course
of entering into a binding contract the intention to create legal
relations is a necessary element. Its absence and its expressed exclusion
would result in a contract not being a contract.
In the areas of tort, intention can be said generally to be of less
overall significance. One specific area within tort where intention could
be relevant as well as irrelevant is illustrated by the principles
applicable to the law of defamation. Defamation – be it libel or slander –
is the publication of matter which would injure a person’s reputation.
Such injury is caused by his being lowered in the estimation of others or
exposed to hatred or ridicule or result in being avoided by another.
Where the person defamed is specifically referred to and the publication
is clearly defamatory, there is little room to argue that there was no
intention. However there are instances in which a person is defamed even
though the words are not defamatory nor the person who complains even
referred to.
This is because, on the issue of liability, a person is defamed because of
what is conveyed and understood by the public and the imputations. It is
this that causes the damage. When this happens it would be that both are
innocent but the person who originated the defamatory matter is the cause.
Intention therefore does not make any difference. But intention could
become relevant for assessing damages once liability is established
because if it is unintentional then the person who caused it did so
innocently. In such circumstances the law recognises the need for a line
to be drawn between a person who caused such damage deliberately and
innocently. |
