One of the most common words in the penal code is the word 'intentional'. If that word appears in the indictment on the summons, the offence can only be proved if the court also finds that there was actual intent. And that is not at all easy to establish in many cases. 

There is intent if someone 'knowingly' has acted. At the very least, a person must then have known that there was a high probability that a certain consequence would occur with his conduct and have consciously accepted that probability at the time of the conduct. This lower limit of intent is also called 'conditional intent'. 

A well-known example of conditional intent is the case known as the 'Hoorn cake judgment'. In that case, a poisoned cake had been sent to someone with the intention of killing them. But the cake was eaten by the addressee's wife, who subsequently died. The defendant's defence that he did not intend to kill this woman is rejected by the court. If you have a cake delivered to a home address, there is a significant chance that someone else will eat of the poisoned cake and thus die. Since he had accepted this chance, there was conditional intent and the man was convicted of murdering the woman, even though the cake was actually meant for her husband. 

But if someone has admittedly acted imprudently or even recklessly, without reckoning for a bad outcome, guilt can be said to exist at most. Often, due to indifference, the dangers were not sufficiently recognised. Mere indifference is insufficient to assume intent. In such a case, there is no 'knowingly' acted and acquittal should follow. 

Courts and tribunals also sometimes go wrong there. Last year, a client of mine was convicted of aiding and abetting fraud, because he had helped to register in the trade register and open a bank account. The court held that there could be (conditional) intent, even though the client had stated that he believed he had helped set up a legal business. On this, I complained to the Supreme Court in cassation. Client may have been careless, but there was no question of a substantial chance that his assistance would be misused to commit a crime. At most guilt, therefore, but no intent. Last month, the Supreme Court ruled in our favour and the court will have to reassess the case. 

In many cases, it is good to make a sharp distinction between intent and guilt. Even if it is conclusively established that someone has committed certain acts, this does not mean that the acts were committed with the intent to commit a crime. 

Exercising the right to remain silent is usually not the best strategy in such cases. Discuss at an early stage what explanation can be given for certain behaviour. If the court interprets those explanations as a form of guilt, while intent is required for a proven case, acquittal will have to follow. 

Mr. D.M. Penn