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Ro > 4 Actus Reus And Mens Rea > Flashcards

4 Actus Reus And Mens Rea Flashcards

1
Q

Actus reus

A

External element of a crime. Some form of conduct or state of affair that causes harm. Objective thing that to materialise before criminal law can be invoked. Can but need not always consist of conduct, consequences and circumstances

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2
Q

Mens rea

A

Subjective element of a crime i.e. his state of mind. In order to incur criminal liability, a perpetrator generally needs to fulfil actus reus and mens rea of the crime

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3
Q

Direct intent (dolus directus)

A

Most serious fault element. Consist of knowing and wanting. Intentional conduct (desire of the actor to bring about a certain result)

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4
Q

Indirect intent (dolus indirectus)

A

A slightly less serious form of intention. Actor knows his conduct will almost certainly bring about consequences that he does not desire or primarly aim at. Cognitive element more dominant than volational.

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5
Q

Test of failure

A

(Indirect and direct intent) if the passengers miracuosly survive, the actor would not consider his plans to blow up the plane and collect the insurance money to have failed. He had dolus directus as to the explosion and the insurance fraud and indirectus as to the death of the passengers

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6
Q

Conditional intent (dolus eventualis)

A

Lowest form of intent. Equates foreseen side-effects with intended results. Defendant was aware of the possible side-effects of his actions and decided to act nonetheless, accepting these side-effects. In germany the d only needs to be aware of any possible chance that the risk may materialise, the risk must be considerable in dutch law.

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7
Q

Externalisation of the presumed will

A

Conditional intent requires acceptance of the risk which is difficult to prove (hidden inner disposition of the actor). From conduct under certain citcumstances and through rules of general experience, it is inferred what the defendant thought and wanted

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8
Q

Recklessness

A

Similar function to dolus eventualis. Middle ground of fault between intent and negligence. Conscious taking of an unreasonable risk (but the risk doesn’t have to be taken for granted). Focuses on Awareness (what he knew)

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9
Q

Subjective test (recklessness)

A

Affirmed in R v G and another. Foreseeing particular kind of harm and taking risk of it.

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10
Q

Conscious negligence

A

Actor foresees a possibility of a consequence resulting from his conduct, but wrongfully relies on the idea that the result would not occur.

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11
Q

Unconscious negligence

A

The actor because of a lack of care wrongfully does not consider the consequences of his conduct. (England only recognizes this form of neg.)

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12
Q

Justification

A

Negates the wrongfulness of the act

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13
Q

Excuse

A

Negates the blameworthiness of the actor

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14
Q

Self-defence

A

In order for self-defence to justify a criminal offence, the attack must be wrongful, imminent and infringe an individual interest. Self-defence must be necessary (the defendant is only allowed to use the least intrusive means of defence, subsidiarity requirement) and proportional (weighing the interests of the aggressor against those of the defendant)
32 GCC
41(1) DCC
76 eng criminal justice and immigration act

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15
Q

Partial defences in England

A

Loss of control: subjective test requires that the killing was the result of loss of self-control, and the loss was caused by a qualifying trigger like an attack or a provocation. Normative test requires that the loss of self-control was in accordance with the reasonable standard

Diminished responsability: mitigates the otherwise narriw definition of insanity. Demands that the abikities to understand the nature of one’s conduct, to form a rational judgment and to exercise self-control are substantially impaired

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16
Q

Necessity

A

Justified necessity applies in a situation of actual danger to legal interests, which danger can only be averted by infringing less valuable interests of third parties.

The defence must be capable of ending the danger and be the least intrusive means of aversion (subsidiarity) and the defendant should choose the lesser of two evils (proportionality)

34 GCC

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17
Q

Duress (psychological necessity)

A

Encompasses situations where the defendant was under such a pressure that he could not reasonably be expected to abide by the law

35 (1) GCC

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18
Q

Insanity

A

Exculpates the defendant who, due to a mental disorder, did not have the capacities at the time of committing the offence to be held responsible in law

39 DCC

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19
Q

Conspiracy

A

Criminanilese preparatory conduct by proscribing the formation of an agreement to commit a serious crime

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20
Q

Samir a decision

A

In determining the criminal purpose of preparatory means by their outward manifestation one cannot abstract from the criminal goal which the defendant aims to reach by using these means. What is important is whether the objects seized, separately or together, by their outward manifestation can be suitable for the criminal purpose the defendant has in using them

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21
Q

Objective theories

A

Focus on the dangerousness or wrongfulness of conduct. Most require a concrete endagerment of the underlying protected legal interest

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22
Q

Subjective theories

A

Focus on the dangerousness or culpability of the actor. Reason for punishing found in the criminal disposition of the actor, the exercise of his criminal intentions or his hostile attitude towards the law

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23
Q

Mixed rationales

A

Emphasise the social dimension of the conduct in question

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24
Q

Line between attempt and preparation

A

Germany: attempt liability will arise once the perpetrator has subjectively passed the here we go threshold and objectively commenced his attack on the legal interest, protected by the underlying offence, so that his conduct will without further steps lead to the commission of the actus reus

NL: wheter its outward manifestation the offenders behaviour can be considered to be aimed at the completion of the offence

England: R v Gullefer: defendant has to have embarked on the crime proper

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25
Q

Impossible attempt

A

An attempt that could under no circumstances have led to the envisaged result

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26
Q

Two categories of impossibility

A

Imaginary offences or legal impossibilities: offender believes that what he is doing is a criminal offence when in reality it’s not

Superstitious attempts: actor attempts to achieve his goal by applying superstitious means

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27
Q

Relatively and absolutely impossible attempt

A

Relatively: attempts where the means ot the object is generally suitable for bringing about the envisaged harm but due to extrinsic factors the means was unsuitable in this case at hand. Criminal liability (inherent danger of causing harm)

Absolutely: attempts that under no circumstances can lead to the envisaged result (no criminal liability as pose no danger)

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28
Q

(England) legal impossibility & factual impossibility

A

Legal: the defendant achieves everything he set out to do but contrary to his believes, the intended result does not constitute a criminal offence (r v taaffe: thought of smuggling foreing currency but was cannabis)

Factually: intended objective would have constituted a criminal offence but the completion of the crime was scrupped due to the existence of facts unkown to the defendant (r v shivpuri: admitted that his suitcase contained heroin but in reality it was snuff)

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29
Q

Incomplete and complete attempt

A

In: actor has not yet done all that he needs to do to set the causal chain in motion. Voluntary desistance might suffice
Complete:the actor has done everything and now only needs to wait for the result to occur. A concrete counter action will be required

30
Q

Perpetrator

A

Person whose liability is primary (can be established independently of all other parties involved in the comidsdion of the ofence)

31
Q

Accomplice/accessorie

A

Liability derived from the wrongdoig of the perpetrator. Includes aiding and instigation

32
Q

Participant

A

Any partner in crime ie perpetrator or accomplice

33
Q

Hegemony over acts doctrine (GE)

A

Distinguishing between perpetrators and accomplices. The decisive criterion of perpetration is the hegemony and control over the execution of the criminal act. The person will be held liable as a perpetrator if he controlled the comission of the offence, considerably influenced the shape and manner of the commission and can thus be seen as the central figure in the crime. The intention of the perpetrator and his factual contributions to the manifestation of the actus reus need to be taken into consideration

34
Q

Direct perpetration (GE)

A

25 art. Anyone who by his own hand brings about the actus reus of the offence in question is considered to be a perpetrator

35
Q

Perpetration by means (GE)

A

25 art. Person who commits the criminal act through another. The other person wont be generally held criminally liable. The relationship between the instrument and the perpetration must be one of subordination

36
Q

Co-perpetration (GE)

A

Art. 25 (2). Requires the joint commission of an offence by several persons. Hegemony over the act restes jointly on the co-perpetrators rather than on the individual. Notion of co-perpetration rests on a particular role allocated in a common plan. The common plan rests upon each participant and each participant is an equal partner in the joint commission of the offence, so the respective contributions to the deed add up to a whole and the result of the offence can be attributed to each participant. Co-perpetrator needs to know essential aspects of the plan and make an essential contribution to the deed. General mens rea standard is intention (dolus eventualis)

37
Q

Deviation from the common plan

A

Generally actions of co-perpetrators that exceed the common plan cannot be attributed to the other participants. However minor deviations from the common design can be attributed to the other participants, if they were of a kind which one could reasonably expect in the execution of the crime and if they do not essentially alter the severity or dangerousness of the offence

38
Q

Instigation and aiding (GE)

A

Liability for aiding can only arise after the criminal offence has been committed but Attempt instigation is criminalised under art 30. Both generally require an intentionally committed and unlawful act by the perpetrator. In addition they require intentional assistance. Both require double intention (intention to induce the commission and inted the offence to be committed) dolus eventualis.

39
Q

Instigation (GE)

A

Art. 26. Requires causing someone to commit an intentional and unlawful act. Emphasis lies more on the indirect violation of the legally protected interest by the instigator who causes another to commit an intentional and unlawful act. Can take any form of an explicit or implied inducement. The means must have caused a psychological change in the mindset of the intermediary and the instigator must have evoked the will to commit the criminal offence.

40
Q

Aiding(GE)

A

Any conduct that furthered or made the commission of the offence easier, more secure or swifter can be qualified as aiding. Required that a person intends to assist the act of the principal and that he knew the essential matters that constitute the objective elements of the offence (dolus eventualis). Generic form of knowledge or intention is required (generally needs to know the type of crime that will be committed)

41
Q

Doctrine of functional perpetration

A

Landmark decision ijzerdraad judgement set conditions under which the functionally responsible person behind the scenes could be held criminally liable. Criteria of power and acceptance: i it was within the owners power to control/determine the employees conduct and the employees act belonged to a category of acts ’accepted’ by the firm as being in the course of normal business operations -> circumstances when the conduct of an export manager can be seen as the conduct of the owner of the company

42
Q

Dutch criteria for co-perpetration

A

Actual contribution to the manifestation of the actus reus is not required as long as the cooperation is intentional (conscious), complete and close.

43
Q

Aiding (NL)

A

Art. 48 (1) deals with concurrent forms of aiding: the accessory assist DURING the commission
48 (2) with preceding forms: the accessory provides the opportunity, means or information necessary TO commit the criminal offence

44
Q

Perpetration (eng)

A

The one whose act is the most immediate cause of the actus reus. Accomplices and perpetrators distinguished by notion of directness or immediacy of cause

45
Q

Innocent agency

A

If the person who actually committed the actus reus cannot be regarded as a participant in the offence because he acted without the necessary mens rea or has a defence such as infancy or insanity, the master behind the scenes who pulls the strings is regarded as the perpetrator. The person used is an innocent agent

46
Q

Abetting

A

Typical connoration nowadays is encouragement. The participant encourages the principal in the commission of the offence

47
Q

Risk society

A

A society in which not the distribution of goods as in the traditional welfare state is central, but rather the distribution of bads ie the prevention and compensation of risks

48
Q

Utilitarian theory

A

To ensure the greatest happiness for the greatest number of people, punishment is sometimes required

49
Q

Retributive theory

A

Men should be held responsible for the crimes which he is guilty because men have free will

50
Q

Culture of control

A

Incapacitation of the delinquet and the protection of the public became more central

51
Q

Negligence

A

Failure to comply with a certain standard of diligence when acting

52
Q

Nominalist approach

A

Establishes a derivative liability of the corporation. Legal entity is only legal fiction. Corporation is collectivity of individuals and therefore the criminal liability of the legal person is derived from individual wrongdoing

53
Q

Organisational approach

A

Corporate personality is something more/different from, only the sum of it’s parts. Corporation is in itself a dynamic organizational reality and capable of acting independently from its individuals

54
Q

Doctrine of vicarious liability (ENG)

A

mainly regulatory offences
Form of criminal liability that is equivalent to the rule on the law of torts: corporation can be held liable for its officers employees just like a natural person would be in these instances
-conduct of individual is attributed to the company. Conduct of individual is conduct of corporation

55
Q

Bribery act 2010

A

Qualified vicarious liability: holds organisations liable for failure to prevent offences that are committed on behalf of the organisation. Corporation is held liable for the acts of its employees and agents but it it qualified as its broad scope is circumscribed by a due diligence defence if it can prove it had adequate procedures to prevent the bribery

56
Q

Identification doctrine

A

Corporation is seen as a collectivity of human beings and is identified through its legal organs or other natural persons. Developed for mens rea offences that allows certain senior people within a corporation to be indentified with the company. The acts and mental state of a certain corporate officer (“the directing mind of the corporation”) are deemed to be the acts and mental state of the corporation

57
Q

The corporate manslaughter and corporate homicide act 2007

A

Acknowledges that management failure may be seen as the cause of a persons death. Focuses less on individual responsability and more on organisational fault

  1. The relevant duty was owed to the victim by the organisation
  2. The breach of the duty was a result of the way the organisation had organised and managed its activities
  3. A substantial element of the breach of the duty was due to the way the senior management staff had organised and managed activities
  4. The breach of the duty amounted to a gross one
  5. The victims death was caused by the breach of the duty
58
Q

Criteria for liability (art 51) nl

A

A corporation can only be held criminally liable if the attribution of the offence to the legal person can be considered reasonable. Indications when it can be could be attributed to a corporation:
1. The act was committed by someone who works for the corporation
2. The conduct fits the everyday normal business of the corporation
3. The conduct benefited the corporation
4. Power and acceptance criteria (ilzerdraad)

59
Q

Administrative offence act art 30 Germany

A

Pursuant to it, administrative fine can be imposed on a corporation if certain leading persons operating on behalf of the legal person have committed a criminal or administrative offence

60
Q

Causal theory of action/ ghost in the machine

A

Criminal act consist in a willed muscular contraction or a willed bodily movement. Man as animus and corpus

61
Q

Teleological theory of action

A

Human action intrinsically purposive. Content of the will (aim) constitutes an element of the concept of action

62
Q

Social theory of action

A

Criminal conduct needs to be interpreted in the social context in which it occured

63
Q

Core ingredients of a criminally relevant conduct

A

Consciousness and control. These can be summarised as requirement of voluntariness. Conduct ought to be voluntary for criminal liability to arise

64
Q

Proper and improper omission crimes

A

Proper: a statute explicitly imposes liability for omitting to do something

Improper: positive acts that (killing) can be committed by people who remain idle and let events run their course

65
Q

Omission England

A

Omissions can trigger criminal liability in circumstances where a general legal duty of care exists which outweights the interest of individual autonomy.

-interpretive approach: tries to reconcile an omission with the terminology found in criminal provisions
-requirement of a special legal duty
-capacity to act

66
Q

Omission netherlands

A

In order for liability for omission to arise, it is generally required that the person in question had a general duty of care for the underlying legally protected interest and the capacity to do so

67
Q

Omission germany

A

Improper crimes article 13. Liabilityderives from a duty to act (duty of care +scope of the duty)

68
Q

Duties of care

A

-based on a special relationship to the victim (parent-children, landlord-lodger)
-undertaken duties (and not fulfilled his obligation) (contracts, railway gate-keeper)
-based on specific qualities of the offender (social role/ position, police, doctors)
-based on ownership of or responsability for a source if danger (owner of a car, pet)
-based on the creation of a dangerous situation

69
Q

Conditio sine qua non (but for test)

A

Baseline to regard the doctrine of causation. The conduct must have been an indispensable condition for the result

70
Q

The theory of proximate cause

A

Choosing the most proximate indispensable condition to be criminally relevant

71
Q

Theory of adequate causation

A

. “A condition is the adequate cause of a consequence if it has tendancy, according to human experience and in the ordinary course of events, to be followed by a consequence of this sort”

72
Q

Chain of of causation can be broken

A

Natural events can break the chain of causation but only under the condition that they were extraordinary and not reasonably foreseeable
-victims reaction is to be considered daft

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