Criminal law Part A : Combination of quizlet

Theories of punishment :

Retributivism vs Utilitarianism
Punishment is deserved vs Punishment is useful
Deontological vs Consequentialist
Backward-looking vs Forward looking
Punishment is good vs Punishment is evil

Positive retributivism

The guilty must be punished to the extent of their deserts ( Kant, Engel )
Ex : assaultive retributivism : it is morally right to hate criminals, because the criminal has harmed society, it is right for society to hurt them back
Ex : punishment as communication > shows to society that this is wrong

Negative retributivism

The guilty may be punished to the extent of their deserts

Mixed theory

Within the bounds of deserts the amount of punishment is determined by utilitarian and/or retributive principle

Retributivism and proportionality

Punishment should be proportional to the severity of the crime
What is a deserved punishment ?
Deserved punishment = r x H
Responsibility > r
- Intentional ? negligent ? excuse ?
Harm > H
- Death, rape, injury, theft

Utilitarianism

Utilitarianism aims to achieve the maximum amount of happiness in society by prevention of crime.

Evil vs. good
• Crime
• Punishment <> • Prevention of crime

Means of crime prevention

Individual deterrence ( you get punish for a crime so won't do it again )
General deterrence ( see someone else being punished > makes you not commit crime )
Moral influence
Rehabilitation
Incapacitation

Legality principle : basis in law

Art 103 German Const. / art 1 Criminal Code
Art 7 subs 1 ECHR > more extensive definition
Main justification for the legality principle :
Foreseeability of criminal liability
Practical reason > change / adapt behaviour of citizens

Sub principles of the legality principle :

1. Prohibition of retroactive effect ( lex praevia )
2. Prohibition of vague laws ( lex certa )
3. Prohibition of analogy ( lex stricta )
4. Prohibition of customary law ( lex scripta )

Prohibition of retroactive effect ( lex praevia )

Prohibition of retroactive effect establishing punishment
Prohibition of retroactive effect aggravating punishment > but not beneficial

Exception : lex mitior-clause > if the law effective at the time of the completion of the offence is changed before the judgment, the most lenient law is to be applied.
Ways in which this exception can be applied :
- Cancellation or restriction of a criminal provision
- Mitigation of the punishment
- New grounds of justification or excuse

Prohibition of vague laws ( lex certa )

Criminal statutes have to be sufficiently precise
This standard is difficult to obtain
ECtHR > Sunday times > up to you to refer to a lawyer for clarification of a law if it is too vague

Prohibition of analogy ( lex stricta )

The application of a rule to cases that are not covered any more by the statute's wording, but whose inclusion into the rule's range of application is indicated by the sense and purpose of the statute.

Prohibition of customary law ( lex stricta )

Court should base criminal liability only on written statutes as opposed to customary laws
- Usually in words
- NB : Aggressive Animal Act ( repealed ) > " if a dog looks like this picture, then it is forbidden."

Substantive rules

guilty in "principle" , defines the crimes that are punished in a particular place, can exclude a certain set of possible major premises ( ex : prohibition on ex post facto law ).

Procedural rules

"guilty in fact", establishes functions for different legal professions, determine the scope of admissible evidence, prescribes provisions for appeal, establishes criteria for reversing judgments

Syllogism of legal guilt

major premise ( defined by substantive law ) + minor premise ( matter of fact> follows a procedure > rules for conducting a fair trial ) + conclusion

Definition of punishment by Hart

Tort ( private wrongdoing between two individuals > civil law > aim = compensation and reparation )

Crime ( public wrongdoing as well as private > criminal law > aim = retribution and rehabilitation )

Administrative fines > blurs the line between criminal and administrative law > recognized as a punishment by ECtHR > usually aim of administrative coercion or administrative performance bond > prevention and reparation instead of retribution

Retributive theory of punishment : Who should be punished

Culpability and blameworthiness
When crimes has been freely committed
Punishment without guilt is a contradiction
Not the offender directly punished but his acts > freewill
Room for security and treatment regulations

Retributive theory of punishment : Why should someone be punished

Because a crimes has been committed ( quia peccatum )

Retributive theory of punishment : Why justice demands that crimes be punished ?

Punishment is intrinsically good because it is purifying
Restores the status quo ante
Restores the balance between benefits and burdens
Satisfies feelings of vengeance
Expresses moral disapproval

Retributive theory of punishment : How severely should someone be punished

Severity should be based on the following criteria :

- Seriousness of the crimes
- Magnitude of the punishment
- Extend of the culpability

Positive and negative retributive theories :

Positive > crime should be repaid in full to the seriousness of it and to the extent of the guilt
Negative > crime can be repaid in full to the seriousness of it and to the extent of the guilt but not necessary

Utilitarian theory of punishment : Who should be punishment

An offender should be punish if that punishment makes him stop committing crimes in the future / if it is useful

Utilitarian theory of punishment : Why should someone be punished

For the prevention of future crimes ( special + general prevention )

Utilitarian theory of punishment : How severely should someone be punished

Crime is not an immoral act for this theory but a social risk
The severity of the punishment is then based on the risk that the offender poses to society and how serious the offence committed is.

Principle of subsidiarity and proportionality applied here so that punishment is only justified when :
- It will prevent future crimes
- No instrument of lesser evil exists

Hybrid theories of punishment

First type : retribution = principle justification for punishment. However, the goal of retribution is nuanced by the fact that for certain purposes of said punishment they may be less or even no punishment.

Second type : prevention = principle justification for punishment. However, the goal of prevention is nuanced by the fact that only a person who has been guilty can be punished and said punishment needs to be proportional to the seriousness of the crime and the culpability of the offender

Classification of offences

Intentional offences
Negligent offences
Result-qualified offences
Conduct offences
Violation offence
Endangerment offence
Concrete endangerment
Abstract endangerment
Commission offences
Omission offences

Intentional offences

'Whosoever intentionally causes bodily harm to another...'

Negligent offences

'Whosoever by negligence causes bodily harm to another... '

Result-qualified offences

Art. X (result-qualified offence)

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.

Art. Y (not a result-qualified offence)

Whosoever intentionally takes the life of another person is guilty of manslaughter and liable to a term of imprisonment of not more than twenty years.

Normally > Need to prove intention with respect to result > only can be convicted for homicide when you have intention to kill person

Result qualified offence > need to prove intention only with respect to minor result, to harming person

Conduct offences

Only need to fulfill the action to be punished
ex : Drunk driving

Result offences

Need a result to be punished
ex : Whosoever intentionally (or by negligence) takes the life of another person is guilty of manslaughter

Violation offences:

Homicide (intentional or negligent)
Damaging property
'Whosoever, with the object of obtaining unlawful gain for himself, induces a person, by artful tricks, to surrender any property...'

Endangerment offence

Drink driving
Driving without a licence
'Whosoever falsely takes an oath before a court..'

Concrete endangerment

• Causing danger in traffic
• Whosoever places a person in a helpless situation and thereby exposes him to a danger of death...

Danger is specified in the offence

Abstract endangerment

. Drink driving
• Driving without a licence
• Whosoever falsely takes an oath before a court...

Danger is implied in the offence

Commission offences

. Doing something is punishable
•A stabs a knife into B's heart
- Manslaughter by commission
•Using violence, A compels B to submit to acts comprising of sexual penetration of the body
- Rape by commission

Omission offences

Not doing something is punishable
•Two kinds of omission offences:
- proper omission offences
- improper omission offences (commission by omission)

Proper omission offences

Violating command(duty to act) is punishable :

- command to take action is explicitly mentioned in the definition of the offence•

Omission to provide aid:

- Art. 323c GCC: "Whosoever does not render assistance during accidents although it is necessary and can be expected of him under the circumstances, particularly if it is possible without substantial dangerto himself and without violation of other important duties, shall be liable..."

Improper omission offences

Violating a prohibitionin the same way as in commission offences, by not doing something (commission by omission)

- duty to take action is not explicitly mentioned in the offence definition• Homicide or murder by omission:

- A does not feed his baby for several days, resulting inthe baby's death

- This is regarded as 'taking the life of another person' (offence description of homicide)

Structure of offences

Tripartite framework of criminal liability

Three consecutive stages :
1. Legal elements of the offence / fulfilment of offence definition
2. Unlawfulness / wrongdoing
3. Culpability / blameworthiness

Legal elements of the offence / fulfilment of offence definition

Whosoever intentionally kills another human being is guilty of...

Objective elements ( actus reus ) :
Act : killing another person
Result : the death of a human being
Causation : causal relationship between act and result

Subjective elements ( mens rea ) :
- 'Intentionally', 'knowingly', 'negligently'

Unlawfulness / wrongdoing

Is the act lawful or justifiable ?

Are there any grounds for legal justification ?

- Self defense
- Necessity
- State order

Culpability / blameworthiness

Can the defendant be blamed for his wrongful conduct ?

Are they any legal excuses ?
- Duress
- Insanity defence
- Self defence excess
- Provocation
- Mistake of law
- Intoxication

Causation

In certain ( result > only in that case causation needs to be addressed ) offences there should be a causal relationship between the act and the result

- Whosoever intentionally takes the life of another person
- Whosoever intentionally and unlawfully damages property belonging to another
- Whosoever causes danger in public

2 requirements of causation :

1. Factual causation ( ' but for ' causation ) > but for the defendant's act would the result have happened when and as it did > could have been the same result but would not have happened in the same way

2. Legal causation > is it reasonable to attribute the result to the defendant's act

1. Is the defendant the direct cause of the result ? If so, causation
2. Does an intervening cause make it unreasonable to attribute the result to the defendant's act ? If no, causation

List of intervening causes breaking the causal chain :

1. Unsubstantial contribution
2. Responsive intervening cause ( IMPORANT )
3. Coincidental intervening cause
4. Naturally occurring intervening cause
5. Culpability perpetrator
6. Culpable human intervention
7. Unforeseeable conduct victim
8. Predispositions victim

Unsubstantial contribution

When the defendant's contribution to the result is insubstantial in comparison to that of the intervening cause, it is usually not the reasonable to attribute the result of the defendant's act

Responsive intervening cause ( IMPORANT )

When the intervening cause occurred in response to the defendant's prior wrongful conduct, it usually remains reasonable to attribute the result to the defendants act
> A responsive intervening cause only relieves the actor of responsibility if the cause was highly abnormal or bizarre

Coincidental intervening cause

When the intervening cause has not occurred in response to the defendant's prior wrongful conduct, it usually is unreasonable to attribute the result to the defendant's act.

Naturally occurring intervening cause

When a naturally occurring intervening cause is foreseeable, it usually is reasonable to attribute the result to the defendant's act.

Culpability perpetrator

In case of high culpability ( e.g intent or recklessness ) of the original perpetrator the intervening cause usually does not make it unreasonable to attribute the result to the perpetrator's act

- Intended consequences can never be to remote

Culpable human intervention

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

Unforeseeable conduct victim

Conduct by the victim only breaks the causal chain when the conduct is completely unforeseeable

Predispositions victim

Predispositions of the victim usually does not break the causal chain
> The defendant has to take its victim as he finds it
> EX. : very fragile head > throw a slipper > dies > still causation

Intentional offences

Intention is always directed at the elements that follow the intentional term

How to interpret intention ?

Concept of intention broadened for negative outcomes

Interpretation subjective elements

German / Dutch Law Model Penal Code ( US )
Intent Purposely / Knowingly / Recklessly
Negligence Negligently

> Broad interpretation of intention in German and Dutch Law

3 forms of intention

- Direct intent
- Indirect intent
- Conditional intent

Direct intent :

Someone acts with direct intent of causing a result if he acts because he wants that result and believes that his action might have that result

Test of failure for Direct Intent :

Would this act have been a failure if the result had not happened ?
Yes > direct intent

( ex : husband doesn't die of the wound > no life insurance )

> Always apply in exam when question on direct intent

Indirect intent

Someone acts with indirect intent of causing a result if he acts whilst being virtually certain that the result will happen

How sure do you have to be to act with indirect intent > almost sure > 90 % > morally just as bad as direct intention

Conditional intent

Someone acts with conditional intent of causing a result if he acts whilst consciously accepting a (considerable) chance that the result will happen

Components of Conditional intent

Conscious acceptance of a (considerable) chance of causing the result

1. Chance (objective component)
2. Conscious (cognitive component)
3. Acceptance (volitional component)

Conditional intent : Dutch to German comparaison

Dutch law: considerable chance > German law: no considerable chance required!

-Federal Court of Justice 22 March 2012, NStZ 2012, 384:
> result should be: possible and not entirerly farfetched

Conditional Intent : Dutch Law

Conscious acceptance of a considerablechance of causing the result

1. Considerable chance (objective component)
2. Conscious (cognitive component)
3. Acceptance (volitional component)• Accepting ≠ desiring!

Principle of Correspondence

- Intent and actus reus should correspond to each other to a certain extent

- If true, we may say that D intentionally killed V (actus reus+ mens rea + correspondence )

How to prove intent

1 ) Confession
2) From act to mens rea technique

Confession

a suspect may give insight into his state of mind during the crime

From acts to mens rea

1. An ordinary person acting like this would know that her conduct would lead to the result

2. The defendant has the capabilities of an ordinary person
- i.e., she is able to foresee the consequences of her actions

3.Therefore, it is plausible to infer that the defendant knew that her conduct would lead to the result and that she accepted the result by acting like that

Negligence

Two stages :

1 ) Objective stage :

2 ) Subjective stage :

Objective stage of negligence

> Comparing of what happened to a reasonable person

> A gross deviation from the reasonable standard of care is required

> Conduct offences ( speeding, running a red light ) may be used to determine what is reasonable

> Probability of harm is important : did the defendant act dangerously ?

> Justifiable risks are reasonable ( therefore, stage 2 determination takes place at stage 1 )

> Can implies ough ; knowledge or extra abilities may lead to higher standards for the defendant ( Garantenstellung ) > ex : knew there was a school, still speeding in front of it, killed kid > compared to a person who also knew there was a school

Subjective stage of negligence

Could the defendant have acted like a reasonable person ?

Acute physical or mental disabilities
- Mental disease > therefore, stage 3 determination takes place at stage 1!
- Chronic physical disabilities
- Young or old age
- Lack of experience or education

Causing one's own defense (prior fault )

• Could the defendant have acted like a reasonable person? (objective stage)
- Should the defendant have placed himself in these circumstances?

• Could the defendant have acted like a reasonable person? (subjective stage)
- Should the defendant have taken his capacities into account?

A Dutch excuse: absence of all culpability

•Stage 1: Legal elements of the offence:
-Crimes: intent or negligence is an element of the offence
-Misdemeanours: mens rea is not an element of the offence

•Stage 2: Unlawfulness:
- Self-defence; necessity; state order

•Stage 3: Culpability:
- Duress; insanity; excessive self defence; and...
- Absence of all culpability

Tripartite framework of criminal liability

1. Legal elements < can all legal elements be established ? No determination of unlawfulness or culpability unless it is part of the legal description of the offence!
2. Unlawfulness < are they any justification ?
3. Culpability < are they any excuses ?

Justification v. excuse

Austin: "In the one defense, briefly, we accept responsibility but deny that it was bad: in the other, we admit that it was bad but don't accept full, or even any, responsibility."

- wounding a person who is about to kill you (justification: self defence)

- killing the mailman because you believe aliens ordered you to do so (excuse: insanity)

Self-defence in Dutch Criminal Code

Art. 41(1) DCC

• He who commits an act where this is necessary in the defence of his person or the person of another, his or another's person's integrity or property, against an imminent unlawful attack, is not criminally liable.

Criteria of self-defence ( excuse )

1. Defence of legitimate interests
2. Imminent attack
3. Unlawful attack
4. Proportionality
5. Necessity
6. Prior fault

1st criteria of self-defence : Defence of legitimate interests

Identify if it fits in 41(1) DCC
Trespassing is not covered by self-defence according to Dutch Law
It is however by self-defence according to German Law

2nd criteria of self-defence : Imminent attack

The time for the use of force will brook no delay is there imminent danger ?
- No pre-emptive strike : mere fear of an attack does not warrant self-defence !
- No retaliation !

3rd criteria of self-defence : Unlawful attack

A person may not defend himself against lawful, justified force

4th criteria of self-defence : Proportionality

The harm done by the defendant must not be excessive relative to the harm threatened and likely to result from the attack

5th criteria of self-defence : Necessity

The defendant should opt for the least drastic way to achieve the goal of self-defence

But what if there is the possibility of retreat or the possibility to avoid a confrontation?

- Retreat if a thief invades your home?
- Not asking your money back from a violent person?

• No duty to retreat or avoid confrontation, unless the defendant is to blame

6th criteria of self-defence : Prior fault

The defendant must not have wrongfully placed himself in the situation

Excessive self-defence in the Dutch Criminal Code ( justification )

Art. 41(2) DCC

• Exceeding the limits of necessary defence, where such excess has been the result of a strong emotion brought about by the attack is not punishable

• Attack strong emotion excessive force

Causal connexions needed to establish excessive self-defence

Attack > strong emotion > excessive force

3 forms of self defence excess

1. Intensive excess
- Using too much force

2. Extensive excess of first degree
- Continuing too long with legitimate defence

3. Extensive excess of second degree
- Starting with 'defence' after the attack

Necessity criteria ( excuse )

1. Imminent danger of legitimate interest
2. Adequate means
3. Subsidiarity
4. Proportionality
5. Prior fault

Necessity criteria 1: Imminent danger of legitimate interest

The defendant must be faced with an imminent danger that a legitimate interest will be harmed

Necessity criteria 2 : Adequate means

The defendant must expect that his action is an adequate way to protect the interest

Necessity criteria 3 : Subsidiarity

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

Necessity criteria 4 : Proportionality

The interest that is protected should be much more important than the interest of not violating the law
- NB : generally, lives cannot be traded against each other

Necessity criteria 5 : Prior fault

The defendant must not have wrongfully placed himself in a situation in which he was forced to engage in criminal conduct

Duress criteria ( justification )

1. Duress ≠ necessity
2. Imminent danger of legitimate interest
3. Subsidiarity
4. Psychological pressure
5. Reasonable pressure

Duress criteria 1 :Duress ≠ necessity

Art 34 GCC ( necessity ) , Art 35(1) GCC ( duress )


Art. 34 GCCA : person who, faced with an imminent danger to life, limb, freedom, honour, property or another legal interest which cannot otherwise be averted, commits an act to avert the danger from himself or another, does not act unlawfully, if, upon weighing the conflicting interests, in particular the affected legal interests and the degree of the danger facing them, the protected interest substantially outweighs the one interfered with. This shall apply only if and to the extent that the act committed is an adequate means to avert the danger.

Art. 35(1) GCC : Whoever, faced with an imminent danger to life, limb or freedom which cannot otherwise be averted, commits an unlawful actto avert the danger from himself, a relative or person close to him, acts without guilt. (...)

If the criteria of necessity are fulfilled there is no duress

Duress criteria 2 : Imminent danger of legitimate interest

The defendant must be face with an imminent danger that a legitimate interest will be harmed

Duress criteria 3 : Subsidiarity

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

Duress criteria 4 : Psychological pressure

The defendant must have acted because of immense psychological pressure : the defendant could not have resisted the pressure

Duress criteria 5 : Reasonable pressure

The psychological pressure facing the defendant should be reasonable : the defendant should not have resisted the pressure :

-The more serious the offence, the more resistance is required

- Prior fault might make it unreasonable to give in to the pressure

- More resistance might be required on account of a professional position ( Garantenstellung )

- Less resistance might be required on account of pregnancy, gender, age, mental disorders etc.