Criminal law Part A criterias

Criterias from the secure slide of A part

Legality Principle

1. Lex preavia (prohibition of retroactive effect)

2. Lex certa (prohibition of vague laws)

3. Lex stricta (prohibition of analogy)

4. Lex scripta (prohibition of customary law)

Prohibition of retroactive effect

Lex preavia

• Prohibition of retroactive effect establishing punishment

• Prohibition of retroactive effect aggravating punishment

• Instrumental function: Whether or not person can be influenced?

  • Forseeablity + fair warning (+instrumental function)

Prohibition of vague laws

Lex certa

• Criminal statutes have to be sufficiently precise

• Standard is difficult to obtain

  • Vague terms cannot be avoided completely, for otherwise the legislator could not do justice to the diversity of life, the change of conditions, and the particularities fo the respective case

Prohibition of analogy

Lex stricta

• The application of a rule to cases that are not covered 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.

  • Generally an argument for broad interpretation

Prohibition of customary laws

Lex scripta

• Courts should base cirminal liability only on written statutes as opposed to customary laws

  • Usually in words

  • NB: Aggressive Animal Act: (repealed)

    • If a dog looked similar to the picture, such a dog fell under a prohibition

Tripartite Framework

1. Legal elements of the offence / fulfilment of offence definition  (Actus reus and Mens rea)

2. Unlawfulness / wrongdoing

3. Culpability / blameworthiness

1. Legal elements of the offence

• Whosoever intentionally kills another human being is guilty of…

  • Can I prove all the legal elements provided in the definition?

    • If not failure

• Objective elements (actus reus):

  • Act: killing of another person

  • Result: death of a human being

  • Causation: casual relationship between act and result → only if it is a result offence

• Subjective elements (mens rea):

  • ‘Intentionally’, ‘knowingly’, negligently’, etc

2. Unlawfulness

• Is the act lawful or justifiable?

• Are there any gourds of legal justification

  • Self-defence

  • Necessity

  • State order

3. Culpability / blameworthiness

• Can the defendant be blamed for  his wrongful conduct?

• Are there any legal excuses?

  • Duress

  • Insanity defence

  • Self-defence excess

  • Provocation?

  • Mistake of law?

  • Intoxication?

2 Requirements of causation

1. Factual causation (‘but for’ causation)

• If he would have done this, would this have happened?

2. Legal causation

• Is it reasonable to put it on the defender?

Factual causation

• But for the defendant’s act would the result have had happened when and as it did?

• Example: Multiple causes acting at the same time

  • Firing squad → possible to argue that victim would die due to other bullets

    • But for the defendant’s act would the result have happened as it happened when it happened?

  • Medication → When and as it did

    • But for the defendant’s act would the result have happened  when and as it did?

  • Omission conduct → difficult to 

    • Is it highly probable that if the defendant had elected to act, this would have happened as it did?

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

Factors of causation

1. Insubstantional contribution

2. Responsive intervening cause

3. Coincidental intervening cause

4. Naturally occuring intervening cause

5. Cuplabiltiy perpetrator

6. Culpable human intervention

7. Unforeseebable conduct  victim

8. Presidispositinos victim

3 forms of intention

1. Direct intent (dolus directus; purposely)

2. Indirect intent (dolus indirectus; oblique intent; knowingly)

3. Conditional intent (dolus eventualis)

Test of failure

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

Indirect intent

How sure do you have to be to act with indirect intent?
80% <

Conditional intent (Germany)

Concious acceptance of a change of causing the result

1. Chance (objective component)

2. Conscious (cognitive component)

3. Acceptance (volitional component)

NO considerable chance required!

Conditional intent (Dutch)

Conscious acceptance of a considerable chance of causing the result

1. considerable chance (objective component)

2. Conscious (cognitive component)

3. Acceptence (volitional component)

   • not the same as desiring

YES considerable chance

Proof of intent

1. confession

2. from act to mens rea

Two stages of negligence

• objective stage

• subjective stage

Objective stage

Did the defendant’s conduct grossly deviate from the conduct of a reasonable person?

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

• Conduct offences (speeding, running a red light; not yielding right of way) 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 ‘ought’: knowledge or extra abilities may lead to higher standards for the defendant (Garantenstellung)

Subjective stage

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

Prior fault!

Tripartite framework of criminal liability

1. Legal elements

   1. can all legal elements be established?

   2. no determination of unlawfulness or culpability unless it is part of the legal description of the offence!

2. Unlawfulness

   1. Are there any justifications?

3. Culpability

   1. are there any excuses?

Self-defence

1. Defence of legitimate interests

2. Imminent attack

3. Unlawful attack

4. Necessity 1 (necessary defence)

5. Proportionality

6. Necessity 2 (necessary force)

7. Prior fault

3 forms of self-defence excess

1. Intensive excess

   a. using too much force

   b. violation of proportionality or necessity 2

2. Extensive excess of first degree

   1. continuing too long with legitimate defence

      1. now, necessity 1 is violated

3. Extensive excess of second degree

   1. starting with ‘defence’ after the attack

      1. now, necessity 1 is violated

Necessity

1. Imminent danger of legitimate interest

2. Adequate means

3. Subsidiarity

4. Proportionality

5. Prior fault

Duress

1. Duress =/= necessity

2. imminent danger of legitimate interest

3. subsidiarity

4. Psychological pressure

5. Reasonable pressure

Justification

• Self-defence

• Necessity

• State order

Excuse

• Duress

• Insanity defence

• Self-defence excess

• Provocation

• Mistake of law

• Intoxication

Subjectivist (culpability centred) approachh

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

Objectivist (harm centred) approach

Criterion: is there an act of manifest criminality?

Mens rea of attempts

Netherlands:
- Same requirements as for complete offences

- Thus, conditional intent suffices!

England:

• Intention of committing the complete offence is required (direct or indirect intent)

• Might be more restrictive than in case of complete offence

• Intention as to circumstances is not required
  

Types of attempts

• Complete attempt

• Incomplete attempt

• Failed attempt

• Impossible attempt

Types of impossible attempts (Dutch law)

Relatively impossible attempts (Dutch law)

• the means or the object is generally suitable for bringing you the envisaged harm, but due to extrinsic factors the means/objects was unsuitable in the case at hand

Absolutely impossible attempts (Dutch law)

• Attempts that under no circumstances can lead to the envisaged result

Voluntary withdrawal

English law:

• No voluntary withdrawal

Art. 46b DCC:

• “Neither preparation nor an attempt to commit a crime obtains where the crime has not been completed by reason of circumstances dependant on the perpetrator’s will.”

• Yes!

No voluntary withdrawal

• One can only withdraw from a preparation or an attempt

• Just thinking about an offence does not even amount to preparation

• First establish whether all requirements for preparation or attempt have been fulfilled!

Reasonable criminal test

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

• remorse?

• realizing the act is morally wrong?

• fear of getting caught by the police?

• realizing that you did not bring the right tools to break into a house?

Participation forms

• Co-participation (art. 47 sub 1)

• Perpetration by means (art. 47 sub 1)

• Instigation (art, sub 1 under 2)

• Aiding (art. 48)

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

Not participation

• factual / physical perpetration (art. 47 sub 1)

• Functional perpetration (art. 47 sub 1)

• Liability of corporation (art. 51)

• Attempt to instigate (art. 46a)

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

Is A liable as an accomplice to voluntary homicide?

• A hands B a gun with the intention that B will se it to intentionally kill C. B does indeed kill C intentionally.

A = accomplice → B = voluntary homicide

• Start from the end of the chain and see if B is liable

• Derivative liability 1 A

Is A liable as an accomplice to voluntary homicide?

• A hands B a gun, with the intention that B will use it to intentionally kill C. However, B does not do anything

A = no liability → B = no liability

• Chain

• Derivative liability 1B

Is A liable as an accomplice to voluntary homicide?

• A hands B a gun, with the intention that B will use it to intentionally kill C. B shoots at C but just misses

A = Accomplice → B = attempted voluntary homicide

• Chain

• Derivative liability 1C

B is being attacked by C. A sees that B’s life is in great danger and throws a knife to B. B, using the knife, intentionally kills his attacker. Is A liable as an aider to voluntary homicide?

A = no liability → B = no liability (justification)

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

• Derivative liability 2

D coerces B to assault C with a threat of harm against B’s children. A assists B’s attack by handing her a knife. B assaults C. Is A liable as as an aider to assault?

A = Aider → B = 1. voluntary homicide, 2. no justification, 3. excuse → no liability

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

• Therefore, A is liable even if B is not

• Derivative liability 3

Preceding participation

• instigation another person to commit a crime (instigation)

• providing information to assist with a crime (aiding)

• masterminding a crime without physically performing part of the acts reus (co-perpetration)

Concurrent forms of participation

• handing a knife to kill a person (aiding)

• Killing a person together (co-perpetration)

Actus reus 2a: types of assistance

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

Actus reus 2b: types of assistance

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

• see previous example (2a)

Actus reus 3: nature of the contribution

• A wants to assist B in the killing of C. To help B, A tells B where C lives. B kills C in a bar, however. Is A liable as an accomplice?

  • No

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

Actus reus 4: nature of the contribution

• B is beating up C. Because it’s very hot, A hands B a diet coke as a refreshment. Is A liable as an aider or co-perpetrator?

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

• Liability for co-perpetration requires a substantial contribution

Mens rea 1

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

Intent to

• aid

• co-participation

• instigate

• perpetrate by menas

• ordering/actually controlling offence coproration

Mens rea 2

• 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

Forms of liability

• Perpetration by means

• Functional perpetration 1: actus reus

• Functional perpetration 2: mens rea

• Instigation

• Attempt to instigate

• Aiding

• Co-perpetration

Perpetration by means (art. 47(1) DCC)

1. Derivative liability: factual perpetrator is not liable 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 question

Functional perpetration 1: actus reus

Eventhough 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 act from being performed (accepting)?

Functional perpetration 2: mens rea

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 (art. 47 (1(2)) DCC)

1. Derivative liability: factual perpetrator is liable

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 (Art. 46a DCC)

Not a from of participation (no derivative liability)

The attempt to be an aider is not covered by this offence

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

   • otherwise liability for instigation of 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 (Art. 48 DCC)

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 (art. 47(1) DCC)

1. Derivative liability:

• both the defendant and another person are liable as co-perpetrators (save excuses; derivative liability 3)

2. Actus reus of co-perpetration (complete cooperation)

3. Intent to co-perpetrate (conscious cooperation)

4. Intent with respect to offence in question

Actus reus of co-perpteration: compelete perpetration

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

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)