Criminal Law (A)

What is the legality principle?

• No punishment without law beforehand

• Art. 7 ECtHR: No one shall be liable for a commission or omission which did not constitute criminality before the act was committed.

What is lex praevia?

Prohibition of retroactive effect establishing punishment

Prohibition of retroactive effect aggravating punishment

What is the exception to the lex praevia principle?

lex mitor clause: If the existing law is changed before the judgement then the lenient law will be applied. So changes in the law can apply if favorable to the defendant.

What is lex certa?

Prohibition of vague statutes

• Criminal statutes have to be sufficiently precise

However this is difficult to achieve

What is lex stricta?

Prohibition of analogy

• Courts must interpret the law strictly

What is the Lenity principle?

The lenity principle is a legal rule in criminal law that requires courts to interpret ambiguous or unclear criminal statutes in a way that is most favorable to the defendant.

What is the Thin-ice principle?

The "Thin Ice" principle is a concept in criminal law that refers to the idea that individuals who take risks must also bear the consequences of those risks.

What is lex scripta?

Prohibition of customary laws.

• Courts should base criminal liability only on written statutes

What is punishment?

1. It is assumed to be unpleasant to the recipient

2. Infliction is intentional

3. In response to breaking the law

4. Person punished has broken the law voluntarily

5. The person ordering the punishment decides whether it is a punishment

What is Retributivism?

Punishment is deserved: people who commit crimes deserve to be punished because they have done something morally wrong.

Deontological: Retributivism is based on moral duty and the inherent rightness or wrongness of actions.

Backward-looking: Looks to the past and the crime that was already committed and not what effects it might have in the future.

Punishment is good: It restores moral balance by serving justice and what is deserved.

What is Utilitarianism?

Punishment is useful: They only justify punishment if it has positive outcomes for society as they aim to maximize happiness.

Consequentialist: Punishment is judged based on consequences

Forward-looking: How will this punishment prevent future crime?

Punishment is evil: See punishment as inherently evil, therefore only justified when the positive consequences outweigh the negatives.

Explain negative and positive retributivism

Positive: The guilty must be punished to the extent of their deserts

Negative: The guilty may be punished to the extent of their deserts

What are examples of retributivist theories?

Assaultive retributivism: It is morally right to hate criminals, because they harmed society first so we can harm them back.

Punishment as communication: Punishment communicates to criminals and society about their wrongdoings.

What does Utilitarianism aim to achieve?

Aims to achieve maximum amount of happiness in a society by prevention of crime

How to calculate deserved punishment?

r (responsibility) x H (harm) = Deserved punishment

What are the means of crime prevention?

• Individual deterrence

• General deterrence

• Moral influence (positive general deterrence)

• Rehabiliation

• Incapacitation

What is the Parsimony principle in Utilitarianism?

A sanction may only be as severe as it is necessary to achieve prevention

What are mixed theoried?

Mens rea required

Amount of punishment determined by both utilitarian and retributive theories

What are some disadvantages of each theory of punishment?

Retributivism: Creates more harm

Utilitarianism: In principle even the innocent may be punished if it helps society

Mixed theories: Mixing both theories is difficult

What are intentional offences?

These are offences where the offender wants the harmful result or at least accepts the possibility that it will occur.

What are negligent offences?

These are offences where the offender did not intend the harmful result, but the result occurred because the offender failed to meet a required standard of care.

What are result qualified

Concept in criminal law where the offender intends one unlawful act, but a more serious result occurs, and the law treats this more serious outcome as part of the offence

What are conduct offences?

The action itself is punishable even if there were no harmful results

What are result offences?

They require a specific harmful result to be incriminating

Explain abstract and concrete endangerment

Abstract: Punishes conduct because it is dangerous

Concrete: Requires proof that actual specific danger occurred.

Explain omission and commission offences

Commission: Doing something is punishable

Omission: Not doing something is punishable

• Proper omission: Not doing anything when it is a must under law

• Improper omission: Commission by omission so doing something by not doing anything (Such as not feeding a baby for days)

What is the Tripartite framework of criminal liability?

1. Legal elements of the offense

2.  Unlawfulness

3. Culpability

What is the 1st stage of Legal elements of the offense in the tripartite framework?

Legal definition of the act

Actus reus (Act, result, and causation)

Mens rea (Intentional?)

What is the 2nd stage of unlawfulness in the tripartite framework?

Is the act lawful or justifiable

What is the 3rd stage of culpability in the tripartite framework of offences?

Can the defendant be blamed for his wrongful conduct?

Any excuses?

What are the 2 types of causation?

Factual causation: If not for the defendant’s acts would the result have happened as it happened and when it happened.

Legal causation: Is it reasonable to attribute the result to the defendant’s actions

• Is the defendant the direct cause?

• Does an intervening cause make it unreasonable to attribute the result to the defendant?

What are the types of intervening causes and contributions in legal causation?

1. Insubstantial contribution: When the contribution of the defendant is insubstantial to the result in comparison to the intervening cause. Not reasonable to attribute the result to the defendant’s act.

2. Responsive intervening cause: When the intervening cause occurred in response to the defendant’s prior wrongful conduct. The defendant is liable unless the the intervening cause was bizarre.

3. Coincidental intervening cause: When the intervening cause has not occurred in response to the defendant’s prior wrongful act. (Defendant is not liable)

4. Naturally occurring intervening cause: When it is foreseeable then it is attributed to the result of the defendant’s act.

5. Culpability perpetrator: When a perpetrator acts in high culpability then even if something else happens later such as an intervening cause, the law will attribute the final result to the original perpetrator.

6. When the intervening cause is a highly culpable human action by a third person, it is usually unreasonable to attribute the result to the defendant's act.

7. There is no liability on the defendant if the victim’s behavior is irrational and unforeseeable.

8. Predisposition victims: If the victim has a pre-existing weakness or vulnerability, the defendant is still liable.

What is the intention in principle?

Principle:
Intent applies only to the elements that come after the word “intentionally” in the statute.

How to use it:

1. Find the intentional term (“intentionally,” “with the intention of…”).

2. Identify which elements follow it.

3. Check if the offender actually intended those specific elements.

4. If not → no intent → no intentional offence.

What are the 3 forms of intention?

1. dolus directus: Someone acts with direct intent of causing a result that he wants and believes that his action will achieve it.

2. dolus indirectus: The offender does not directly aim for a harmful result, but knows that the result is virtually certain to occur as a consequence of their actions, and still proceeds.

3. dolus evantualis: When someone consciously accepts a chance that the result will happen as a result of their actions. 

What are the components required by dolus evantualis?

In German Law:

• Cognitive component: Offender foresees the risk that the harmful result may occur.

• Volitional component: The offender accepts the risk and continues with the act.

In Dutch Law:

• Considerable chance: The risk must be real

• Cognitive

• Volitional

What are the 2 stages of negligence?

Objective stage: Did the defendant’s conduct grossly deviate from the conduct of a reasonable person.

• Gross deviation is required

• Probability of harm

• Justification?

• Considering if the defendant’s knowledge imposed higher expectations

Subjective state: Could the defendant have acted like a normal person?

• Physical or mental disease

• Age

• Lack of education or experience

What is the text of failure for direct intent?

Would his act have been a failure if the result

had not happened?

– Yes = direct intent

What is justification?

It takes away the unlawfulness of a crime

What is an excuse?

Accepts illegality but omits guilt

What is self defense?

When someone acts in defense in a situation where it is necessary for himself or others, he is not criminally liable.

• When the state can’t help you in time

• Integrity refers to sexual integrity

Criteria for self defense

Defense of legitimate interests: In defense of life, property or integrity. (Always mention interest threatened) Trespassing only in German law.

Imminent attack: Direct and imminent danger

• No retaliation after incident

• Pre-emptive strike only allowed if there is an imminent danger

Unlawful attack: The threat must be illegal.

Necessity 1 (Necessary defense): Is it necessary to use force at all? (In Dutch there is a duty to retreat if possible) (Provocation does not equate self defense)

Proportionality: The harm done to the aggressor must not be excessive relative to the harm threatened. Look at 2 interests and compare.

Necessity 2 (Necessary force): The defendant should opt for the least drastic way to achieve the goal of the self defense. Is it the only way?

Prior fault: The defendant must not have wrongfully placed himself in the situation.

What is self defense excess?

When exceeding the limits of necessary self defense caused by emotions it is not punishable. Must satisfy the 1st four criteria.

What are the 3 forms of self defense excess?

1- Intensive excess: Using too much force

• Violation of proportionality or necessity 2

2- Extensive excess of 1st degree: Continuing with defense for too long. At first the 4 criteria are satisfied but later they no longer are.

3- Extensive excess of the 3rd degree: Starting the defense later after the attack. At one point the 4 criteria are satisfied however when the actual retaliation is executed they no longer are. In Dutch Law allowed with in 30 seconds due to emotion.

Insanity

Any person who commits a crime that cannot be attributed to him by reasons of mental illness is not criminally liable.

Criteria for insanity

1- Relevant mental disorder: Was the defendant suffering from a relevant mental disorder when committing the crime?

2- Legal attribution: Did the disorder impair the defendant’s capacities in such a way that it should not be attributed to her.

• Is there prior fault?

Criteria for necessity

Imminent danger of legitimate interest

Adequate means: The defendant must expect that his action is an adequate way to protect the interest.

Subsidiarity: There must be no effective legal or less intrusive way to protect the interest.

Proportionality: The interest that is protected should be more important than the interest of not violating the law.

Prior fault: The defendant must not have wrongfully placed himself in the situation.

Criteria for duress

Duress not necessity: If the criteria for necessity are satisfied then there is no duress

Imminent danger of legitimate interests

Subsidiarity: No effective legal or less intrusive way

Immense psychological pressure: The defendant must be influenced by immense psychological pressure.

Resistance is not required: Resistance varies

• More resistance if it’s due to defendant’s prior fault

• More resistance if the offence is serious

• More resistance due to professional duty

• Less resistance due to age, mental disorders, or vulnerability.

Subjectivist approach for liability for attempt

Criterion: Is the act clear evidence of the defendant’s intent to commit the crime?

• As soon as there is enough evidence of culpability he is liable for attempt.

• The act is not important but instead it proves culpability

• Result: Attempt is constituted in early stage.

Objectivist approach for liability for attempt

Criterion: Is there an act of manifest criminality?

• Requires an actual illegal action

• Attempt liability starts when there is a threat to a legal interest.

• How close is the defendant to committing the crime?

• Result: Attempt constituted late stage.

Dutch Law: Must have initiated crime

English Law: Post preparatory

What is a conspiracy?

An agreement between persons that a course of conduct will be followed, if the agreement is carried out in accordance with their intentions, either will

1- amount to an offence by parties to the agreement

2- will fail due to the existence of facts standing in the way

• Both guilty

• Requires at least 2 people

• As soon as there is an agreement there is liability

What is preparation?

• Preparation to commit crime carrying sentence of minimum 8 years.

• Intentionally obtains or has objects , substances, information, carrier, space, or means of transportation

• to commit the crime

• Specific crime

Dutch Supreme Court: The object in question should play a role in the commission of the crime not just preparation making it illegal the second you buy it. Must involve physical object

Difference in mens rea of attempt liability in Dutch and English Law

Dutch Law: Conditional intent suffices

English Law: Intention of committing complete crime is required

Types of attempts

Complete Attempts: When the defendant does everything he intended to do in order to effect the criminal project but this fails to bring about the intended consequences.

Incomplete consequences: When the defendant does not get to the point of executing the offence.

Failed attempt: When the defendant can no longer achieve the intended goal because of external circumstances.

Breaking window case in Dutch Law

D tries to break window with shovel but behind it is an unbreakable window.

Trial court: No impossible attempt because there was another regular window to complete the offence.

Supreme Court: Breaking a window initiates offence

Types of impossible attempts (Dutch Law)

Relatively impossible attempts: The means or the object is generally suitable for the envisaged result but extrinsic factor makes it unsuitable.

Absolute impossible attempts: Attempts that under no circumstances can lead to the envisaged result.

Voluntary withdrawal

In English Law: Not possible but in theory you would get less punishment then when going through it.

• Thinking about it does not make it illegal

In Dutch Law

Must be based on reasons dependent on the perpetrator’s will

Only if crime was established

• Establish attempt

• Establish voluntary withdrawal

Reasonable criminal test for voluntary withdrawal

Would the reason for withdrawal lead a reasonable criminal to abandon the project?

Yes: Not voluntary

No: Voluntary

Forms of participation

Co-perpetration: Jointly with others.

Perpetration by means: Who causes an innocent person to commit a criminal offense.

Instigation: Those who by means of gift, promises, abuse of authority, use of violence, threat, or deception or providing the opportunity, means or information to solicit the commission of the crime.

Aiding: Those who intentionally assist during the commission of crime.

Ordering: Those who have ordered the offence as well as on those who have actually controlled the forbidden act.

Forms of non-participation

Factual /physical perpetration: Person commits the actus reus in a physical way.

Functional perpetration: Person controlling the offence although not acting in a physical way.

Liability corporation: Offences can be committed by legal persons.

Attempt to instigate: Attempt to instigate another to commit a crime using factors under 47 (2).

General requirements of participation

1- Principle offence from which liability is derived

• Connection?

• Actual crime

• There is no accomplice liability when the principal offender has a justification defense.

• There is accomplice liability when the principal offender has an excuse defense.

2- Actus reus: Contribution to the commission of the offence.

Preceding forms of participation:

• Instigation

• Aiding (Providing info)

• Co-perpetration (Mastermind)

Concurrent forms:

• Aiding (Giving knife)

• Co-perpetration (Killing a person together)

Types of contribution:

• Physical influence

• Psychological influence

• Influence by omission

3- Mens rea: Intention to contribute to the commission of the crime.

• One person does not have to fulfill all the requirements of the crime.

In Dutch Law conditional intent suffices.

Contribution in aiding and co-perpetration

Aiding: Even a small contribution is enough

Co-perpetration: Requires substantial contribution

Criteria for preparation by means

• Derivative liability: Factual perpetrator is not liable for whatever reason.

Functional perpetration: Actus reus: Did A have the power to control the criminal act?

Did A accept the criminal act being performed?

Mens rea: The Functional perpetrator is required to have had the intention to commit the crime

• Cause the factual perpetrator to commit the crime

• Intent to perpetrate by means

• Intent with respect to the offence in question

Criteria for attempt to instigate

1- The person targeted by the offender did not yet commit a complete or attempted crime.

2-Means listed in Art. 47 (1)

3-Intent to instigate

4-Intent with respect to the offence in question

Criteria for aiding:

1-Derivative liability: Accessory to a crime

2-Actus reus of aiding

• Assist during the commission

• Provide means/opportunity

3-Intent to aid

4-Intent with respect to the offence in question

Criteria for co-perpetration

1-Derivitive liability: Both the defendant and another person are liable as co-perpetrators

2-Actus reus of co-perpetration:

• Elements of the offence can be attributed to each other

• Physical presence not required

3-Intent to co-perpetrate

4-Intent with respect to the offence in question