LLB: CL Part A : Week 5

Participation forms ( General requirements of participation )

•Co -perpetration (art. 47 sub 1):

- "jointly with another or others"

•Perpetration by means (art. 47 sub 1):

- "who cause an innocent person to commit a criminal offence"

•Instigation (art. 47 sub 1 under 2):

- "those who, by means of gifts, promises, abuse of authority, use of violence, threat or deception or providing the opportunity, means or information, intentionally solicit the commission of the crime"

•Aiding (art. 48):

- "those who intentionally assist during the commission of the crime"

- "those who intentionally provide the opportunity, means or information necessary to commit the crime"

•Ordering/ actually controlling offence corporation (art. 51)

- "those who have ordered the offence, as well as on those who have actually controlled the forbidden act"

Not participation forms ( General requirements of participation )

•Factual/ physical perpetration (art. 47 sub 1):

- "those who commit a criminal offence, either personally"
- person commits the actus reus in a physical way

•Functional perpetration (art. 47 sub 1):

- "those who commit a criminal offence, either personally"
- person controlling the offence, although not acting in a physical way

•Liability of corporation (art. 51):

-"Offences can be committed by (...) legal persons"

•Attempt to instigate (art. 46a):

- "An attempt to instigate another to commit a crime by employing one of the means listed in Article 47(1), no. 2 is punishable ..."

Requirements of accomplice liability ( General requirements of participation )

Liability is derived from a principal offence (derivative liability)

• Actus reus: contribution to the commission of the offence

• Mens rea: intention to contribute to the commission of an offence

Actus reus 1: preceding and concurrent participation ( General requirements of participation )

Preceding forms of participation

- instigating another person to commit a crime (instigation)
- providing information to assist with a crime (aiding)
- masterminding a crime without physically performing part of the actus reus (co-perpetration)

Concurrent forms of participation

- handing a knife to kill a person (aiding)
- killing a person together (co-perpetration)

Actus reus 2: types of assistance : ( General requirements of participation )

1. Physical influence:

- handing the gun; holding the victim; serving as a lookout

2. Psychological influence:

- forcing a person to commit an offence by blackmailing her

3. Influence by omission

Actus reus 3: nature of the contribution ( General requirements of participation )

The conduct of the accomplice should in fact further or facilitate the commission of the offence

Actus reus 4: nature of the contribution ( General requirements of participation )

• Even a small contribution to the offence suffices for liability as an aider

• Liability for co-perpetration requires a substantial contribution

Mens rea 1 ( General requirements of participation )

The accomplice should have intent with regard to contributing to the offence

- Intent to:

• aid
• co-perpetrate
• instigate
• perpetrate by means
• ordering/ actually controlling offence corporation

Mens rea 2 ( General requirements of participation )

The accomplice should have intent with regard to the offence in question
- Dutch law: conditional intent suffices!
- Consciously accepting considerable chance that gun will be used to kill a person is sufficient for liability as an aider to murder

Perpetration by means 1 (Forms of liability)

Art. 47 DCC:

-(1) The following are liable as perpetrators:

1. those who commit a criminal offence, either personally or jointly with another or others, or who cause an innocent person to commit a criminal offence

Perpetration by means 2 (Forms of liability)

1. Derivative liability: factual perpetrator is notliable for whatever reason,

e.g.:
- no mens rea
- excuse (Milk and water case)

2. Causing factual perpetrator to commit the offence

3. Intent to perpetrate by means

4. Intent with respect to offence in questi

Functional perpetration 1: actus reus (Forms of liability)

Even though A did not physically commit the murder, he did fulfill the actus reus in a functional way

1. Did A have the power to control the criminal act ?

2. Did A violate a duty of care with regard to preventing the criminal actfrom being performed (accepting) ?

Functional perpetration 2 : mens rea (Forms of liability)

The functional perpetrator is required to have the intention to commit the offence (if the offence in question is an intentional offence)

- thus, intent of physical perpetrator cannot be attributed to the functional perpetrator !

Instigation (1) (Forms of liability)

• Art. 47 DCC:
- (1) The following are liable as perpetrators: (...)

2. those who, by means of gifts, promises, abuse of authority, use of violence, threat or deception or providing the opportunity, means or information, intentionally solicit the commission of the crime

Instigation (2) (Forms of liability)

1. Derivative liability: factual perpetrator isliable

2. Causing the factual perpetrator to act (psychological causation)

3. Means listed in art. 47(1):
- gifts, promises, abuse of authority, use of violence, threat or deception or providing the opportunity, means, information

4. Intent to instigate

5. Intent with respect to offence in question

Attempt to instigate (1) (Forms of liability)

• Art. 46a DCC:

- An attempt to instigate another to commit a crime by employing one of the means listed in Article 47 (1) , no. 2 is punishable ...

• NB: not a form of participation (no derivative liability)

• NB: the attempt to be an aider is not covered by this offence

Attempt to instigate (2) (Forms of liability)

1. The person targeted by the attempter did not yet commit a complete or attempted crime (no derivative liability)

- otherwise liability for instigationof complete or attempted crime

2. Means listed in art. 47(1):

- gifts, promises, abuse of authority, use of violence, threat or deception or providing the opportunity, means, information

3. Intent to instigate

4. Intent with respect to offence in question

Aiding (1) (Forms of liability)

Art. 48 DCC: The following persons are liable as accessories to a crime:

1. those who intentionally assist during the commission of the crime;

2. those who intentionally provide the opportunity, means or information necessary to commit the crime.

Aiding (2) (Forms of liability)

1. Derivative liability (accessory to a crime)

2. Actus reus of aiding

- assist during the commission of the crime
- provide the opportunity, means or information necessary to commit the crime

3. Intent to aid

4. Intent with respect to offence in question

Co -perpetration (1) (Forms of liability)

Art. 47 DCC:

- (1) The following are liable as perpetrators:

1. those who commit a criminal offence, either personally or jointly with another or others, or who cause an innocent person to commit a criminal offence

Co -perpetration (2) (Forms of liability)

1. Derivative liability:

- both the defendant and another person are liable as co-perpetrators (save excuses; see slide 8)

2. Actus reus of co-perpetration (complete cooperation; see next slide)

3. Intent to co -perpetrate (conscious cooperation)

4. Intent with respect to offence in ques

Actus reus of co-perpetration: complete cooperation (Forms of liability)

• Elements of offence definition can be attributed to each other

• Physical presence is not required

• Criterion: an intellectual and/or material contribution of sufficient weight

- Factors:

"the intensity of the cooperation, the division of tasks among the partners, the role in the preparatory phase, the commission or execution of the offence and the importance of the defendants' role therein, the presence of the defendant at crucial moments during the commission of the offence and his failure to distance himself from the criminal enterprise at a suitable time.

In this context it has however to be noted that a failure to distance oneself on its own is not of great significance for establishing co-perpetration" (ECLI:NL:HR:2014:3474)

Art. 51 DCC (Corporate liability)

1. Offences can be committed by natural persons and legal persons.

2. If an offence has been committed by a legal person, prosecution can be instituted and the punishments and measures provided by law can be imposed, if applicable, on:

(1) the legal person, or (2) those who have ordered the offence, as well as on those who have actually controlled the forbidden act,

or (3) the persons mentioned under (1) and (2) together.

Corporate actus reus: the Slurry-case (Corporate liability)

• May the (forbidden) conduct reasonably be attributed to a corporation?

• Attribution may be in order if one or more of the following circumstances occur (next slide)

Corporate actus reus: the Slurry-case (Corporate liability)

1. Acts or omissions by somebody who works for the corporation

2. The conduct falls within the scope of the company's everyday business

3. The conduct benefited the corporation in its business

4.

(a) Did the corporation have the power to control the criminal act?

(b) Did the corporation violate a duty of care with regard to preventing the criminal act from being performed (accepting)?

*see criteria for functional perpetration (slide 22)*

Corporate mens rea (Corporate liability)

1. The mens rea of a natural person is attributed to the company

2. The faults of two or more people associated with the company are taken together to establish the corporation's mens rea

3. Mens rea of the company is established without reference to human fault