Criminal Law Part A 2022/2023 | Quizlet

What are the two purposes of the legality principle?

a. Ensure forseeability of criminal consequences (fairness)
b. To influence behaviour

lex praevia means?

Prohibition of retroactive effect -->
To be punsihable, crime must have been a crime at the time it was commited.

What are the two prohbitions lex praevia puts on the state regarding crimes already commited?

a. Establishing new punishment (no new offences)
b. Aggravating punishment (no more serious punishment)

What is the lex mitior clause?

In some jurisdiction, a new law must be applied retroactively if it benefits the defendant (only works between comission of offence and final judgement).

What does lex certa refer to?

Prohibtion of vague law. If law is too vague, citizens can't forsee consequences. Must be well written code or clear jurisprudence.

What does lex stricta refer to?

Prohibition on reasoning by analogy. Laws cannot apply more broadly than the statutory defintion allows.

What is the leniency principle?

In some (not all) jurisdictions, where there is ambiguity the most lenient interpretation must be applied.

What does lex scripta refer to?

Law must be written. Cannot be based on customs or morals. There must either be a code, or in common law jurisdictions clear jurisprudence.

What are the 5 characteristics of punishment according to Hart?

1. Assumed to be unpleasant
2. Unpleasantness is intentionally inflicted
3. In response to breaking a rule in a law system
4. The rule is broken voluntarily
5. The imposing authority believes it is punishment

What are the 4 basic tenets of retributivism

1. Criminals DESERVE to be punsihed
2. It is deontological (centered on moral)
3. Focused on harm done in the PAST
4. Punishment is morally GOOD

What are positive and negative retributivism

a. Positive --> offender must be punished to the FULL EXTENT of their moral debt
b. Negative --> offender can be punsihed UP TO the extent of their moral debt (mixed theory)

What are the two theories to justify the retirbutive approach?

Assaultive retrubitivsim --> it is morally right to hate criminals
Punishment as communication --> fear of punishment stops people from commiting crime

What is the function of proportionality in the retributive system?

The severity is determine by r (responsibility of offender) 'multiplied' by h (harm done to victim). A punishment assigned by this 'formula' is proportional.

Who is the primary Enlightenment thinker associated with retributivism, and what does he argue?

Kant. He believed that humans have free will, therefore when people do evil it is morally imperative to punish them.

What are the 4 basic tenets of retributivism?

1. Punishment is a tool to maximize good and minimize evil
2. It is consequentialist (what are the material impacts)
3. Focused on acheiving a better FUTURE
4. Punishment is a necessary EVIL

Under utilitarianism, what does punishment acheive?

1. Indiviudal (or special) deterence
2. General deterence (people are scared)
3. Moral influence (people feel bad)
4. Rehabilitation
5.Incapacitation

How does a PURE utilitarian understand proportionality?

There is no problem if a punishment far outweighs the harm of the crime, so long as the good created > bad prevented.
ex. Punish drunk driving with the death penalty. People would probably never drive drunk, and many lives would be saved from car accidents.

What factors temper this strict interpretation?

a. Parsimony (subsidiarity) principle --> Punishment can only be as strict as is necessary to acheive the goal
b. If too severe, good created < evil of punishment
c. Overly severe punishment creates public outcry

Who is the primary Enlightenment thinker associated with utilitarianism and what does he argue?

Bentham. He believed people did not have free will, and they operated to maximize pleasure and minimize pain. Therefore punishmnet can influence behaviour.

What general dichotomy (or dialectic) do the two theories of punishment reflect in Enlightenment thinking.

The dialect between man as free willed v.s. man as a mechanism that responds to external stimuli. Aka spirit v.s. body.

What type of offence is this?
1) Whoever intentionally physically maltreats or harms the health of another person, shall be punished with imprisonment for not more than 4 years.
2) If the maltreatment or the harming results in a severe injury, the perpetrator shall be punished with no more than 6 years.
3) If the maltreatment or the harming results in the death of the victim, the perpetrator shall be punished with no more than 8 years.

Result qualified offence

What is a results offence, and its opposite?

When a specific criminal outcome is required in order to create liability.
Opposite of a conduct offence.

What is a conduct offence, and its opposite?

When an action itself, regardless of the result, is sufficient to create liability.
Opposite of a result offence.

What is concrete enangerment, and its opposite?

When a perpetrator causes factual and material danger through their action, not just the risk of danger.
ex. speeding, running a stoplight
Opposite of abstract endangerment.

What is abstract endangerment, and its opposite?

When a perpetrator creates an increased risk of dangerousness through circumstance, not through actual behaviour.
ex. driving w out a license, drunk driving

What is a comission offence, and its opposite?

When a perpetrators positive action is punishable. The vast majority of offences are comission.

What are the two types of ommission offences and their definitions?

Proper ommission --> when an obligation exists, and the offence definition is not meeting the obligation. ex. not giving first-aid.
Improper ommission --> when a commission offence is commited, but through inaction (usually failure to meet a duty of care). ex. a parent not feeding their baby and it dies = murder.

What are the three stages of the tripartite framework of liability, and what analysis taks place?

1. Fufilliment of legal elements of offence (Actus reus + mens rea)
2. Unlawfullness (is there a justification?)
3. Culpability (is there an excuse?)

When and at what stage is it necessary to establish causation?

Whenever establishing liability for a result offence.
It is established at step 1, under the actus reus. To meet the actus reus of a results offence, there must be:
a. An act
b. A criminal result
c. A casaul link between the two

What are the two stages of establishing causation?

1. Factual causation
2. Legal causation

What is the FULL test for establishing factual causation?

The 'but for test' -->
But for action X, result Y would not have occurred, or would not have occured when and/or as it did.

When is it possible to establish causation by ommission?

When the responding person had the ability to prevent the fufillment of the criminal result, but did not act.

With what 4 types of intervening causes does the perpetrator retain legal causation?

- Responsive intervening cause
- Natural intervening cause
- Culpability of perpetrator
- Predisposition of the victim

With what 4 types of intervening causes is the perpetrator relieved of legal causation?

- Insubstantial contribution
- Coincidental intervening cause
- Culpable human intervention
- Unforseeable conduct of victim

What are the three different types of intention in the continental system, and how does the English system differ?

Continental system has direct, indirect and conditional intent.
In the English system:
- Direct and indirect = 'intent'
- Conditional intent + conscious negligence = 'recklessness'

What two broad psycological aspects must be present in all kinds of intent?

Volitional aspect --> what does the defendant want?
Cognitive aspect --> what does the defendant believe will be the result of their action?

What is the definition of direct intent?

The defendant must want to bring about the criminal result (volitional) and believe their action will bring about the result (cognitive).

Which of the two aspects is more important in direct intent?

The volitional aspect. A strong volitional aspect can compensate for a weaker cognitive aspect.
ex. Man aims a gun at his wife's chest, wanting kill her, but he knows he is a bad shot --> direct intent.

What is a crime of necessary means?

A goal that is not primarily desired, but understood as necessary to acheive the final goal.
ex. A man killing his wife to claim her life insurance --> direct intent for murder and insurance fraud.

What is the 'test of failure' and what does it prove?

To determine whether an action was commited with direct or indirect intent.
If the act in question had failed, would the perpetraor have considered their plan as whole thwarted?

What is the definition of indirect intent?

The defendant must be virtually certain that their conduct will bring about the criminal result, but it is not their desire or aim.

Which of the two aspects is more important in indirect intent?

The cogntive aspect. A strong cognitive aspect (virtual certainty) will compensate for a weak or non-existent volitional aspect.
ex. A man sets a house on fire to claim insurance fraud, and he knows his grandma who he loves will die in the fire --> indirect intent.

What is the defintion of conditional intent?

One acts with conditional intent when they conscioucly accept (volitional) a [considerable?] possibility (cognitive) that the criminal result will occur.

How does the defintion of conditional intent differ in Dutch and German law?

In the Dutch system there must be a SIGNIFICANT chance that the risk will materialize.
In the German system ANY chance that the risk could materialize is sufficient.

What is the THREE step test for establishing conditional intent?

1. Objective aspect --> is there a real chance (in NL a considerable one), that the act could lead to the criminal result?
2. Cognitive aspect --> Would an ordinary person be aware of this risk? Is the defendant an ordinary person?
3. Volitional aspect --> Did the defendant accept the risk?

What is the difference between accepting a result and desiring a result?

Acceptance just means being willing to endure the consequences of ones actions, whereas desiring means actively wanting the outcome.
ex. A gambler accepts they may lose their money, but does not desire it.

What is the principle of correspondence with regard to conditional intent?

The intented and the actual actus reus of a crime must correspond to a certain degree, or not intention can be established.
ex. Man is driving to kill his friend, hits a pedestrian, and it turns out to be his friend --> actual actus reus is too far removed from the intended actus reus to establish intent.

What are the two ways of proving intent?

1. Confession of state of mind
2. From act to mens rea --> three part test:
a. An ordinary person would understand there action would/could lead to criminal result
b. The defendant is an ordinary person.
c. Therefore they KNEW their action would/could lead to the result (cognitive), and by acting anyways they accept/want it (volitional).

Can insane and intoxicated people act with intention?

Yes, they meet both aspect:
a. Volitional --> insane and intoxicated people desire or accept the results of their actions, even if those desires are warped by their mental state/intoxication.
b. Conditional --> they understand that their actions will lead to this desired result.
Insanity excuses happen at Step 3, while intoxication rarely diminishes criminal liability.

What are the three steps of the test to establish negligence, and what analysis happens at each stage?

Objective stage --> Was the offender's conduct a gross deviation from the conduct that could expected of a reasonable person?
Subjective stage --> Could the offender be expected to act like a reasonable person?
Prior fault --> is there prior fault?

What is the difference between culpa lata and culpa levis, and which is required to establish negligence?

Culpa levis --> light negligence
- They didn't act like the PERFECT person, only sufficient for civil liability.
Culpa lata --> gross negligence
- They didn't act like a REASONABLE person, only sufficient for criminal liability.

What is the concept of garatenstellung and how does it relate to culpa lata?

Garantenstellung is a concept from German law that states:
When someone enters into a special activity, more can be expected of them than of an average person. By engaging in the activity they 'gurantee' they are qualified to do so.
ex. driving, performing surgery

What role do conduct offences play in establishing culpa lata?

Particularily in traffic situations, a person acts unreasonably if they violate a conduct offence.
ex. If you run a stoplight and kill someone, you'll likely be liable for negligent homicide

When analyzing negligence, what happens if a defendant has taken a risk, but that risk can be justified?

When a risk is justified through a valid defence (ex. necessity by force majeur), negligence cannot be established.
- This means that unlawfullness must be analyzed at step 1.

What factors could influence a finding of negligence at the subjective stage?

- Unexpected and sudden mental/physical disability (ex. seizure while driving)
- Insanity (step 3 analysis at step 1)
- Known physical disability
- Young or old age
- Lack of experience

What are the two ways a defendant can have prior fault?

Objectively --> they should not have put themselves in the dangerous situation.
Subjective --> they should have better assessed their own competences.

How does the continental and English systems differ regarding justifications and excuses?

In the English system, they have a 2-step framework to establishing crim. liability (actus reus + mens rea), so there is no dichtomy between justifications and excuses.

What is the rationale for the existence of justifications, and what makes them distinct from excuses?

Justifications negate the blameworthiness of the ACT.
- They communicate the defendant was right to act as they did from society's perspective.
Justifications have universal application, and can be applied to people who help the defendant.
- Anyone in the same situation would be expected to act as the defendant did.

What is the rationale for the existence of excuses, and what makes them distinct from justifications?

Excuses negate the blameworthiness of the actor.
- Society thinks what they did was wrong, but believes it would be unfair to punish them
Excuses have specific application, and anyone who helps the excused person cannot also employ the defence.
- If someone without the excusing characteristic acted the same, they would be found liable.

What is the origin of the right to self defence in continental and in English law?

Continental --> natural law
English --> aggressor has a reduced right to claim respect for their own rights

What are the six requirements for self-defence?

1. Legitimate interest
2. Imminent attack
3. Unlawful attack
4. Subsidiarity
5. Proportionality
6. Prior fault

In self-defence, how does the definition of a legitimate interest differ in Dutch and German law (step 1)?

Dutch --> interests are defined in legislation (person, sexual integrity, property)
German --> any legal interest can be defended

What is the start and end point of the right to self-defence (step 2)?

Start-point --> when the attack is imminent (no preemptive)
- a reasonable person would assume that, without action, the attack would occur
End-point --> when the attack has ended (no retaliation)
- When the legal interest has been definitively violated or the attack is adandoned/thwarted/failed

In self-defence, what situations would make an attack lawful (step 3)?

a. A police officer is aprehending you for a valid reason.
b. A person is exercising their own right to self-defence (you are the aggresor).

In self-defence, what criteria must be met for defensive action to comply with the principle of subsidiarity (step 3)?

a. Defensive measure has a reasonable possibility of ending/reducing the attack (more German)
b. There was not less severe measure that could have reasonably been taken

In self-defence, is there ever a duty to retreat (step 3)?

Very rarely, only if the defendant has provoked the aggressor. They cannot be required to retreat if:
- Getting help from authorities would require extraordinary effort
- The attack is in their own home

In self-defence, what does it mean for a defensive action to be proportional (step 5)?

The harm threatened by the aggressor must not be disproportonate to the harm used to stop the attack.
This is based on the standard of a reasonable person, and can depend on indiviudal characteristics.

In self-defence, how does the principle of proportionality differ in German law (step 5)?

In German law, there is no proportionality, as that would right giving way to wrong.
If a disproportionate action is the only way to stop an act, it can still be disqualified under the doctrine of abuse of rights.

What are the differences between the German and Dutch excuses of self-defence excess?

Dutch --> emotion caused by attack must be SOLE reason for excessive defence (ex. can't be intoxicated) + emotions can be stenic or astenic.
German --> emotion caused by attack must be PART of reason for excessive defence + emotions can only be astenic

What are the three different types of self-defence excess?

Intensive Excess --> amount of force is disproportionate
Extensive excess 1st --> defendant continues too long with the defence
Extensive excess 2nd --> defendant reacts only after the attack is over (NL only)

What are the 5 requirements to establish necessity?

1. Imminent danger to legitimate interest
2. Adequate means
3. Subsididarity
4. Proportionality
5. Prior fault

How does the defintion of an imminent DANGER differ from that of an imminent ATTACK?

An imminent danger is defined less strictly. Necessity will accepted if not acting means averting the danger later would be impossible, less effective, or carry greater risk.
Not so broad as too include general societal issues.

In necessity, what does it mean to have adequate means?

The defendant must reasonably believe their action will avert or diminish the danger (very broad).

How does the understanding of subsidiarity differ in self-defence and necessity.

Still must be no effective lawful/less intrusive measure... but:
In necessity, subsidiarity is applied more strictly, as the defendant is assumed to have more time to contemplate their options, given that the definition of an imminent danger is broader.

How does the understanding of proportionality differ in self-defence and necessity, and what factors influence whether a measure is proportional?

To be proportional in necessity, interest being protect much > importance than one being violated.
Factors include:
- The nature of the danger
- The difference in value between the colliding interests
- The prospective benefits to society
- The potential irreversibility of the damage
- The chance of saving one or both interest

What is the one exception to the weighing interests in necessity, and what English case creates this rule?

Lives can never be weighed against lives (so even if you kill one person to save 100, it will not be necessity).
This rule is derived from Dudley v. Stephens

How is duress different from necessity?

In necessity, we acknowledge that the defendant broke the law but in a way that benefited society. In duress, we recognize that the defendant was under pressure such that it would unreasonable to expect him not to break the law.

What are the 5 criteria to establish duress?

- Situation is NOT necessity
- Imminent danger to legitimate interest
- Subsidiarity
- Proportionality
- Psycological pressure
- Reasonable pressure

What is the difference in Dutch and German law between the legitimate interests that fall within the scope of duress?

German --> life, limb and freedom only... NO property
Dutch --> any interest, subject to proportionality

What is the defining feature of the type of psycological pressure required for a duress excuse?

Must be external to the defendant (his own thoughts like suicide don't count)

Where can homicide be excused by duress?

YES in Germany and Netherlands
NO (probably) in England

What are the three criteria for establishing an excuse of insanity?

1. Existence of mental disorder
2. Casaul link between disorder and the crime
3. Prior fault

What is the two step test to determine if there is a link between a mental disorder and the crime.

1. At the time of the crime, the volitional (could not stop themselves) or cognitive aspect (did not understand) of the defendant's intent was modified.
2. The modification of these aspects was a direct result of the mental disorder.

What are the characteristics of the subjectivist approach to attempt liability?

- Focus on proving defendant is dangerous/guilty person (act = evidence of guilty mind)
- Focus on what is left to be done in offence sequence
- Liability can be established earlier

What is the substantial step test in the MPC?

Attempt liability can be established if:
a. The act consitutes a substantial step toward comission of the crime
b. That step is strongly corroborative of the defendant's criminal purpose

What are the main characteristics of the objectivist approach to attempt liability?

- Focus on threat to a legal interest (how close were they?)
- Focus on what is left to be done
- Liability is established later

What are the requirements of the English prepatory offence of conspiracy?

- An agreement to commit a criminal act
- Made between 2 or more people
- They must intend to carry the agreement out
The actus reus of the offence is simply making the agreement, so if they change their mind still liable

What are the requirements to establish liability under the Dutch doctrine of general preparation?

Actus Reus:
a. Obtain object intended for comitting the crime
b. Have a special correspondance to the crime (can't just be any item)
Mens Rea:
Intent is required, cannot negligently prepare

What are the three different kinds of attempts?

Complete attempt --> they carry out everything they planned to do, but result doesn't materialize
Incomplete attempt --> do not complete entire sequence but > preparation
Failed attempt --> the attempt fails definitively due to external circumstances
*An attempt can fall into more than one of these categories

What is the test to see if an act = attempt in Germany law?

a. Subjectively, defendant has passed 'here we go point'
b. Objectively, defendant has commenced the attack on legal interest such that without intervention the full offence will be commited.

What is the test to see if an act = attempt in Dutch law?

To its outward manifestation can the offender's behaviour be considered to be aimed at the completion of the offence?

What is the test to see if an act = attempt in English law?

In order to be considered a criminal attempt, and more than merely preparatory, the defendant must have embarked on the crime proper

What is the difference between a relatively and an absolutely impossible offence, and when can you establish liability?

Relatively impossible --> the action is generally suitable for comitting the full offence, but in these specific circumstances it is not (YES liability)
Absolutely impossible --> the action is never suitable for comitting the full offence (NO in NL ... YES in England)

What are the two requirements for voluntary withdrawal?

a. Attempt must be incomplete... not failed and usually not complete (removing a bomb)
b. Withdrawl must be voluntary... must be based on autonmous motives (own morals) not non-autonmous motives (fear of being caught)

What is the reasonable criminal test?

Would the reason for withdrawal be prudent from the point of view of a reasonable criminal? If so... not voluntary.

What are the two purposes of the Area of Freedom Security and Justice?

a. Promote judicial cooperation
b. Promote police cooperation

Which countries have opt-outs to the Area of Freedom Security and Justice?

Ireland --> flexible opt-out
Denmark --> full opt-out

What are four European instiutions operating in the criminal law space?

- European Judical Network --> prosecutor cooperation
- Europol --> police coordination
- Eurojust --> prosecutor cooperation + authority to decide who has jurisdiction
- European Public Prosecutos Office --> full prosecution office... takes over from national authorities for crimes against EU budget

What four requirements does Art 83(1) TFEU create in terms of the scope of EU substantive criminal law

a. Can only regulate cross-border crime or if there is special need to combat on common basis
b. Must legislate through directives
c. A rule must include offence definition, penalty and jurisdiction
d. EU creates minimum rules, member states can be more strict

What does the EU mean by autonomous concepts and what is an example?

EU has the right to create terms and define what they mean in their own legal system... ex. habitual resident
But they can also leave it up to member states to define a term ex. age of consent