Criminal Law Flashcards
1
Q
What is criminal law?
A
A body of law that regulates what conduct is considered criminal (within a particular jurisdiction). It regulates the punishment of such conduct by defining rules that must be followed to hold a person criminally responsible for engaging in it
2
Q
What is substantive criminal law?
A
Focuses on the “substance” of an offence, and what actions are crimes, and what the penalties should be. Can include definitions of crime, forms of criminal responsibility, grounds for excluding criminal responsibility, jurisdictions, basic principles etc.
3
Q
What is procedural criminal law?
A
Sets the rules and processes through which the criminal justice system operates. Can include pre-trial proceedings, trial proceedings, and appeal and review proceedings
4
Q
Where does civil law originate, and where is it practiced now?
A
Roman Empire. Is practiced generally in Europe now, as well as many states in Africa, Central and Latin America, and some of Asia.
5
Q
Where does common law originate, and where is it practiced now?
A
England, through William the Conqueror and his “king’s courts”. Is practiced generally in the UK, USA, and their colonies.
6
Q
What are some core features of civil law?
A
- Written (codified) laws take precedent
- Deductive (top down) approach
- No binding case law (jurisprudence)
7
Q
What is the deductive (top down) approach?
A
Used in civil law jurisdictions, it finds relevant rules from a systemised legal code and applies them to the facts of the case at hand, thus solving the case
8
Q
What are some core features of common law?
A
- Uncodified (judge-made) law takes legal precedent
- Inductive (bottom up) approach
- Binding case law
9
Q
What is the inductive (bottom up) approach?
A
Finding similar cases, distilling judicial rationale (ratio decidendi) used to solve it, applying the same reasonings to the case at hand to solve it
10
Q
In civil law systems, what is contained in the criminal code?
A
- A special part: containing crime definitions
- A general part: containing rules and principles that apply generally to all crimes in the special part
11
Q
In civil law systems, what is contained in the criminal procedural code?
A
- The rules and procedures governing pre-trial, trial and appeal proceedings
- How crimes should be investigated, who the main actors are
12
Q
What are some sources of criminal law in civil law jurisdictions?
A
(Most used):
Criminal code
Criminal procedural code
(Less used):
Sepcialised legislation on distinct crimes Constitution
Previous court judgements (not binding)
Legal doctrine (scholarly work, not binding)
13
Q
What is jurisprudence?
A
The study and theory of law.
In common law, jurisprudence relies on interpreting case law and judicial precedents.
In civil law, jurisprudence revolves around interpreting codified statutes.
14
Q
What is stare decisis?
A
Literally, to stand by things decided. Refers to the legal doctrine where courts follow precedents set by previous judicial decisions when ruling on similar cases. This ensures consistency and predictability in the law. Also says that higher courts have a higher power than lower ones.
15
Q
What are some sources of criminal law in common law jurisdictions?
A
(Most used):
Legal precedents
Laws passed by parliamentary legislations
(Less used):
Statutory laws on specific crimes
Constitution (not in UK)
Modal penal code (not in UK)
There is no criminal code in the UK or USA
16
Q
What is a monist system?
A
One in which a treaty becomes directly applicable to a system once signed
17
Q
What is a dualist system?
A
One in which a treaty must be signed and ratified, AND the legislative body has to translate it into their own legislative system before being directly applicable to the system
18
Q
What is the legality principle?
A
Also known as nullum crimen nulla poena sine lege, literally no crime, no punishment without the law. It states that a new criminal law in the criminal code cannot be applied to a modern crime that occurred before the law.
19
Q
What are the key aspects of the legality principle?
A
A law should be:
1. Pre-existing (lex praevia)
2. Precisely formulated, not vague (lex certa)
3. Written (lex scripta)
4. Strictly interpreted and applied by courts (lex stricta)
20
Q
What is lex praevia?
A
The principle of non-retroactivity. States that a person can only be convicted on the basis of a law that existed and applied to them at the time they engaged in the conduct
21
Q
What is lex mitior?
A
If a law has been changed multiple times after an act was committed, the accused can benefit from the most lenient, favourable law, that was in use from the time the act was committed until the act is decided upon by the Court.
22
Q
What is lex certa?
A
The prohibition of vague and indeterminate laws. Criminal law must be foreseeable and accessible to the accused at the relevant time.
23
Q
What is the foreseeability element of lex certa?
A
The ordinary person must be able to understand from the wording of the law what conduct is illegal.
The law must be defined in precise and unambiguous language that narrowly defines the punishable offence
24
Q
What is the accessibility element of lex certa?
A
The law must have been made public and available to the accused.
25
What is lex scripta?
The law must be written, and a person can only be convicted on the basis of a law written down in a statute. (common law jurisdictions are less accepting of this, and allow for custom, too).
26
What is lex stricta?
Prohibition of expansive interpretation of the law (e.g. not by analogy). Judges must interpret and apply the definitions of laws strictly, in accordance with their plain wording.
26
What is ECHR?
European Convention of Human Rights
27
What is rule of law?
Institutionalised law. All actions of the government are codified through policies, so rule of law is State's law.
28
What is the structure of a case brief?
1. Facts
2. Core legal issue
3. Both parties' arguments
4. Court's ruling (findings on law and merits of the case)
5. Conclusion
29
What were the legal findings from S.W. v UK?
Article 7 does is confined to prohibiting the retrospective application of the criminal law to an accused's disadvantage. Article 7 also says that only the law can define a crime and prescribe a penalty (nullum crimen, nulla poena sine lege), and the principle that the criminal law must not be extensively construed to an accused's detriment, e.g. by analogy. From these principles, it follows that an offence must be clearly defined in the law.
Overall: The legality principle does not always prevent courts from adopting progressive interpretations of criminal law to convict an accused
30
What is inchoate liability?
The defendant's liability rests on their involvement in the possible commission of an offence (by themselves or others), rather than on the commission of the offence itself.
31
What is the criminal process?
The processes by which criminal cases are brought to trial
32
What are trial proceedings?
The procedural rules governing the conduct of trials
33
What are the stages of criminal proceedings?
1. Pre-trial proceedings
2. Trial proceedings
3. Appeal proceedings
4. (review proceedings)
34
What are the major models of criminal proceedings?
The inquisitorial model (civil law)
The adversarial model (common law)
35
What are pre-trial criminal proceedings?
Investigations and decisions to charge or dismiss
36
Who are the main actors in the pre-trial phase (common and civil law)
- Police
- Prosecution
- Suspect (and their defence lawyer)
- (examining judge, civil proceedings)
37
In inquisitorial models, what role do police play?
- Conduct investigations under the close supervision and instruction of the public prosecutor
- Collect evidence, question witnesses, carry out arrests, interrogate suspects
- The police are subordinate to the prosecutor
38
In inquisitorial models, what role does a public prosecutor play?
- Collects all evidence that they intend to use in the trial, collates into a dossier
- Their task is to find the objective truth, not to convict someone
- Tasked with finding objective truth by actively looking for both incriminating and exculpating evidence.
- Can sometimes sit in on police investigations and even witness interviews
- Will guide the police in their investigations
- Ultimately decides whether and for what crimes the suspect should be charged with (indicted)
- If the suspect confesses, less investigation will occur. Generally, prosecutors will seek to confirm the guilty plea.
- professional, legally trained (like judges), non-partisan
39
In inquisitorial models, what role does the suspect (and their lawyer) play?
- They have no right to conduct their own investigation, this is seen as tampering with evidence
- They can access the dossier, suggest investigative leads to the prosecution, attend questioning of witnesses and submit their own questions via the prosecutor
- Largely a reactive role, can respond to questions asked by the judge, can raise challenges to information included or not in the dossier
- Has the last word before conclusion of the trial
40
In inquisitorial models, what roles do judges play?
- They are examining judges, serving as a check on the prosecution's powers during the pre-trial investigation
- Certain invasive investigative measures must be authorised by a judge before the prosecution can implement them, e.g. wiretapping, search and seizure, remands in custody
- Will have read the dossier pre-trial
- Professional, legally trained, sits alone or in panels, generally of 3
- Limited participation from jurors is allowed in some inquisitorial systems
- Not all information in dossier has to be examined at trial.
- Active role, seeks to establish the objective truth "beyond reasonable doubt"
- Can ask questions to the accused (lawyer) and prosecution, based on dossier
- Can summon and question witnesses and experts
- Will determine guilt and sentence in a written, reasoned judgement.
41
In adversarial models, what role do police play?
- They have complete independence in conducting investigations
- Not subordinate to the public prosecutor (but in reality they do have a relationship with them)
- Partisan nature of police investigations- police will focus on finding incriminating evidence to support the prosecutor's case, there is no legal duty to look for exculpating evidence.
- Will give the prosecutor all gathered evidence at the end of the investigation
42
In adversarial models, what role does the public prosecutor play?
- Limited to deciding whether to charge the suspect
- Can have informal coordination with police investigations in complex cases. Can refuse to charge a suspect unless the police further investigate/find evidence.
- Obliged to pass on any exculpating evidence to the defence lawyer if they find any
43
In adversarial models, what roles does the suspect (and their lawyer) play?
- Active role: conducting their own investigation, preparing defence case for trial
- Under no obligation to pass on incriminating evidence to the prosecutor if they find any
44
In adversarial models, what role does the judge and jury play?
- generally a passive role
- (also in inquisitorial), the judge can authorise a lengthened detention during pre-trial investigations, e.g. if the suspect is likely to abscond or interfere with investigations
- They have no obligation to hear a prosecution's plea for a lesser sentence or charge, if the prosecution has agreed on a plea deal- but this can lead to complications (and mistrust).
- The judge can draw a line if the prosecutor/defence is leading or intimidating the witness
- The judge does not find the accused guilty- the jury does.
- The judge will instruct the jury on the law, after both sides have pled their cases. If the defence/prosecution finds reasonable evidence that the judge led the jury to a decision, this can be grounds for mistrial.
- The judge will pass sentence.
45
What is habeus corpus?
The fundamental right to challenge the lawfulness of an arrest/detention before a court
46
What are some fundamental rights of a suspect during pre-trial proceedings?
- Habeus corpus
- An arrested suspect can be detained at a police station for a maximum of 4 days. Police can detain for maximum 24 hours, unless the prosecutor authorises further detainment.
- The suspect has the right to be brought before a judge as soon as possible.
- Nemo tenetur
- Right to a lawyer, not only at trial, but also during pre-trial proceedings (Salduz v Turkey)
47
What is nemo tenetur?
The right to remain silent, and to not incriminate oneself through that silence. Refusal to answer questions cannot be used as sole or main evidence for conviction.
48
What are some general details of trial proceedings?
- Prosecution gives an overview of the evidence it will use in trial, and the defence does the same.
- If the prosecutor finds evidence during the trial that they couldn't gain before the trial, the judge will rule on the admissibility of the evidence. The trial could be adjourned, which would allow both sides to work on strategies around the new evidence.
49
What are some general details of the end of the pre-trial phase, and the beginning of the trial phase?
- The prosecution will prepare an indictment to be filed at the court of first instance
- In adversarial systems, guilty pleas and bargains may be entered into
- The judge will read the indictment against the accused at the beginning of trial
50
What is an indictment?
Contains criminal charges against the accused, and they are no longer a "suspect". Filed by the prosecutor. A factual summary of information on the case and what the prosecutor is trying to prove. What proof will be used, what laws will be referenced. Filed at the court where the trial will be held.
51
What is a charge bargain?
If you plead guilty (or incriminate other suspects), the prosecution will charge you with a lesser charge
52
What is a plea-bargain?
An agreement between the accused and the prosecutor, generally giving the accused the opportunity to plead guilty in return for a reward. There are two main types (other than a confession): charge bargains and sentence bargains.
53
What is a sentence bargain?
If you plead guilty, the prosecution will plead a more lenient sentence
54
Who are the main actors in the trial phase (adversarial and inquisitorial)
- Judge/jury
- Prosecution
- Defence (accused and lawyer)
55
In adversarial models, what does the trial process contain?
- Prosecution and defence are equal parties
- They argue their case before a judge and jury, who have no previous knowledge of the case facts
- Prosecution will present their case first. They will bring witnesses, who can be questioned by defence and prosecution
- When prosecution is finished, they will rest their case, and it is the defence's turn
- General rule of inadmissibility of hearsay evidence, without sufficient proof
- Trials tend to be long
56
What is equality of arms?
In an adversarial model, it refers to the equal standings of the prosecution and defence. and their opportunities to present their cases.
57
In inquisitorial models, what does the trial process contain?
- The trial judge(s) will lead proceedings
- Questions will be asked regarding the dossier and its contents, the prosecutor and defence can answer
- Prosecution will plead its case at trial opening, and also presents and addresses any exonerating evidence
- Sentence decided by judge
58
What are some fundamental rights of the accused during trial proceedings? (adversarial and inquisitorial)
- Presumption of innocence until proven guilty beyond reasonable doubt
- The burden of proof is always on the prosecution to establish the guilt of the accused
- Right to a speedy trial
- Right to be tried by an "independent and impartial" tribunal in a "public hearing" (i.e. judges and lawyers must be independent from executive and legislative power, and they must not be biased. Also, judgement shall not be administered in secret- it must be visible and open to public scrutiny)
- Right to effective lawyer
- Right to remain silent
- Right to not receive double jeopardy
59
What is in dubio pro reo?
Literally, beyond all reasonable doubt, a standard of proof.
60
What is ne bis in idem?
Also known as double jeopardy- applies after a final verdict, stating that a person cannot be tried twice for the same conduct/same crime.
60
What are some grounds for appeal?
- Error of fact, i.e. the judges incorrectly interpreted the evidence to establish a fact
- Error of law, i.e. the judges incorrectly defined and applied the law to the established facts
- Procedural error
61
In inquisitorial systems, who can appeal?
Both the accused and the prosecution have the right to appeal the verdict and the sentence
62
In adversarial systems, who can appeal?
The prosecution has no right to appeal an acquittal by a jury. They can only appeal a sentence of a non-jury verdict. The defence can appeal after a final judgement or hearing.
63
Why do post-conviction review proceedings occur? (adversarial and inquisitorial)
They can occur because:
- New evidence has surfaced (not available at time of trial, and would have altered verdict)
- They are review proceedings for wrongful convictions
- Decisive evidence used to convict in original trial turns out to be false or forged
- Gross misconduct/breach of duty by judges, resulting in grave miscarriages of justice
They are exceptional remedies for severe miscarriages of justice
Not typically possible for acquittals due to double jeopardy, but in some jurisdictions prosecutors can request review proceedings for serious crimes when new evidence is found
63
What is mens rea?
Literally, a guilty mind. Also known as criminal intent/intent, associated with the mental state of the perpetrator, and their want to inflict harm on the victim. Often called the "subjective" or "mental" element of a crime.
63
What can an appeal court do? (adversarial and inquisitorial)
- Affirm a judgement
- Reverse a judgement
- Order a re-trial
Typically, only errors of law can be appealed before a country's supreme court
64
What does actus non facit reum nisi mens sit rea mean?
The act shall not make a person guilty, unless the mind is also guilty
64
What is actus reus?
Literally, the guilty act. Also called the "objective" or "material" element of a crime. It is the specific prohibited action that led to harm, or the physical elements of it.
65
What elements of actus reus can be found in a crime?
1. Conduct- the crime is the prohibited conduct itself (e.g. child abuse)
2. Circumstance- the conditions or context under which the conduct occurs (e.g. employing minors, or driving drunk)
3. Consequence- the result of outcome of the conduct (e.g. death)
Not every crime has all three- one can be enough to constitute criminal behaviour
Failure to act, or omission, can also form the actus reus of a crime
65
What two things must be proven for someone's actions to constitute as criminal?
Mens rea and actus reus
66
What is conduct, within actus reus?
This refers to the act itself, being prohibited or criminalised, and the undertaking of the act is automatically a crime. E.g. rape
Failure to act, or omission, can also form the actus reus of a crime
67
What is circumstance, within actus reus?
This refers to the circumstances of conditions under which an action occurs, which therefore make it a crime. E.g. Soliciting a minor
68
What is consequence, within actus reus?
This refers to the outcome of a conduct, which because of the outcome make it a crime. E.g. Injury
69
What is causality in criminal law?
Establishing the relationship between the accused's act and the prohibited consequence.
70
How is the "but-for" test used in criminal law?
It is a commonly used starting point of causation analyses, known as "cause-in-fact". Can help to exclude certain options.
71
What are some problems with the "but-for" test in criminal law?
- Under inclusive: if two people commit a wrong, it is difficult to determine who is to blame- if both individuals (for example) weren't essential to the consequences of a crime, neither could be held accountable because they would cancel each other out
- Over inclusive: you can continue to assign blame until the end of the world (but for X's mother giving birth to X... etc.)
72
What is the proximate cause test in criminal law?
You can use this after applying the conditio sine qua non test to limit implausibly remote causes. Used to determine if a defendant's actions are legally responsible for the harm, even if they are not the direct cause. Closest not necessarily in time/space, but closest in sense of being the primary/predominant cause
73
How do you apply the proximate cause test?
1. Identify the conduct
2. Assess foreseeability- would a reasonable person have anticipated the consequences?
3. Evaluate intervening causes which may absolve guilt
74
What is omission?
A failure to act, and a type of actus reus of a crime
75
What are some types of omission?
1. Statutory criminal omissions, e.g. "good Samaritan laws." Some jurisdictions have laws that specify that a failure to act to prevent a consequence from taking place is guilty of committing a crime
2. Failing to act when there was a "legal duty to act":
- Legal duties based on profession (e.g. lifeguard)
- Legal duties based on special relationship (e.g. parents)
- Legal duties based on creating danger (causing circumstances) (e.g. starting a forest fire then running away)
76
What is culpa in causa?
Guilty because of your causation- It describes situations where a person's prior negligent or wrongful conduct leads to a situation where they fail to act, thus contributing to a harmful outcome. Essentially, if someone creates a dangerous situation, they may have a legal duty to intervene or act, and their failure to do so can result in criminal liability.
77
What are the components of mens rea?
1. Cognitive component: Awareness that conduct will bring about the commission of a crime
2. Volitional component: Desire to bring about the commission of a crime
78
What is the cognitive component of mens rea?
Awareness that conduct will bring about the commission of a crime
79
What is the volitional component of mens rea?
The desire to bring about the commission of a crime
80
What are the forms of intent (dolus)?
1. Direct intent (dolus directus in the first degree)
2. Indirect intent (dolus indirectus)
3. Conditional intent (dolus eventualis)
There is also negligence, which is unintentional, but you can still be culpable
81
What is dolus indirectus?
Indirect intent (also known as dolus directus in the second degree, or oblique intent). The suspect knows that their acts or omissions will bring about the commission of a crime, and nevertheless accepts this by carrying out the crime, despite not wanting it to occur.
Volition element: Suspect does not desire to commit the crime.
Dominant cognitive element: awareness of the virtual certainty that their acts will result in a crime
81
What is dolus directus in the first degree?
Direct intent. The suspect knows that their acts or omissions will bring about the commission of a crime and carry out these acts/omissions with the purposeful will to commit the crime.
Volitional element: The suspect desires to commit the crime.
82
What is dolus eventualis?
Conditional intent. The suspect is aware of a risk that their acts/omissions may result in the commission of a crime, and nevertheless accepts (and approves) that risk
Weak volitional and cognitive elements.
83
What is recklessness?
Similar to dolus eventualis, essentially a common law cousin to it. The suspect is aware of a risk that their acts or omissions may result in the commission of a crime.
Only cognitive element, and no volitional element (no risk approval). not a form of intent.
84
What are the tests of foreseeability in criminal law?
Subjective test: Did the accused foresee the risk that their acts or omissions may result in a crime?
Objective test: Would any reasonable person have foreseen that risk?
85
What is the subjective test in foreseeability?
Did the accused foresee the risk that their acts or omissions may result in a crime?
86
What is negligence in criminal law?
The suspect was not aware that their actions/omissions would bring about the commission of a crime, but, owing to the circumstances in place, should have known.
Neither cognitive (didn't know), nor volitional (didn't desire/accept the crime)
In civil law, this is the definition of unconscious negligence
87
What is the objective test in foreseeability?
Would any reasonable person have foreseen that risk?
88
What is conscious negligence?
Applies when someone is aware of the possibility/risk that their actions/omissions may result in the commission of a crime (cognitive component), but they are absolutely confident that it would not occur (no volitional element, no acceptance). In common law, this is still recklessness.
89
What is a principle perpetrator?
Their responsibility is independent from that of the other parties to a crime. In order to hold them responsible, you have to prove that that they committed (or attempted to commit) the underlying crime.
A defence used by the principle perpetrator will affect the responsibility of the accessory.
89
What are the two general approaches to multiple participation in a crime?
Unitary/monist: no distinction between principle committers of a crime and accomplices/accessories. Anyone who causally contributes to a crime and has the requisite mens rea is a principle perpetrator. Found in Austria and Brazil.
Differentiated/dualist: There is a distinction between principle offenders and accessories.
90
What is an accessory?
Their responsibility is derivative from (dependent on) that of the principle perpetrator.
The responsibility of the accessory is affected by the defence used by the principle perpetrator.
91
What are the modes of accessorial liability?
- Aiding and abetting
- Instigating
They are not mutually exclusive.
92
What is aiding?
Providing physical, material assistance to the commission of a crime
93
What is abetting?
Providing moral encouragement or support to the commission of a crime.
94
What are the objective and subjective elements of aiding and abetting?
Objective: The accused provides material assistance, encouragement, or moral support to the commission of a crime, and this support has a substantial effect on the crime's commission. You don't have to prove that without the aiders/abetters, the crime wouldn't have occurred- but you do have to prove that they made more than a minimal contribution, and that it had a substantial effect.
Subjective: The accused knows that their acts or omissions assist the commission of the specific crime of the principle perpetrator. Knowledge must be established.
94
What must be proven to qualify as aiding and abetting?
- That the aiders/abetters' actions had a more than minimal contribution to the commission of the crime
- That the aiders/abetters knew that their actions would assist in the commission of the specific crime carried out by the principle perpetrator
95
What is instigating?
Also known as soliciting, inducing, and counselling. Planting a seed/prompting another person to commit a crime.
96
What are the objective and subjective elements of instigation?
Objective: The accused prompts another person to commit a crime and that act has a substantial causal effect on the commission of the crime.
Subjective: The accused either directly intends the commission of the crime, or is aware of and accepts the risk that a crime will be committed in the execution of that instigation.
97
What must be proven to qualify instigation?
- That the accused prompted the principle perpetrator to commit a crime, which had a substantial effect on the commission of the crime
- That the instigator directly intended the commission of the crime, or knew the risks of its occurrence and accepted them.
98
What are the modes of principle liability?
- Direct perpetration
- Indirect perpetration (the "innocent agent" doctrine, and the "perpetrator behind the perpetrator" doctrine)
- co-perpetration
99
What is direct perpetration?
The accused physically, directly commits a crime
100
What are the objective and subjective elements of direct perpetration?
Objective: the accused physically or otherwise directly carries out the actus reus element of the crime
Subjective: The accused either directly intends the crime, or is at least aware of and accepting of the possibility that his conduct may result in the crime (dolus eventualis)
101
What is indirect perpetration?
Using another person as an instrument to commit a crime. There are two types:
- The "innocent agent" doctrine
- The "perpetrator behind the perpetrator" doctrine
102
What is the innocent agent doctrine?
A type of indirect perpetration. The accused uses another person as an instrument to commit a crime
103
What are the objective and subjective elements of the innocent agent doctrine?
Objective: the accused uses an intermediary who is not himself a criminally culpable individual to commit a crime (e.g. a child or mentally handicapped person)
Subjective: The accused directly intends that the intermediary commits the charged crime, or is at least aware of and accepting of the possibility that it will be committed (dolus eventualis)
104
What is the perpetrator behind the perpetrator doctrine?
A type of indirect perpetration. Originally from Germany, it is the Täter hinter dem Täter doctrine, in which the perpetrator controls expendable subordinates, ensuring their compliance in the commission of a crime.
105
What are the objective and subjective elements of the Täter hinter dem Täter doctrine?
Objective: The accused controls a hierarchical organisation that ensures "automatic compliance" with their orders. The accused uses that organisation to have easily replaceable subordinates commit a crime.
Subjective: The accused directly intends that the subordinate commits the charged crime, or is at least aware of and accepting of the possibility that it will be committed (dolus eventualis)
106
What is co-perpetration?
When there are multiple perpetrators who commit a crime jointly
107
What are the objective and subjective elements of co-perpetration?
Objective: The accused shares a common plan to commit a crime with at least one other person. The accused also provides a significant contribution to the execution of the said common plan, resulting in the commission of the crime.
Subjective: The accused shared a common intent (purpose) with their confederate(s) to commit the agreed upon crime.
108
What are incidental/deviatory crimes?
Crimes that are not an agreed part of a plan between co-perpetrators, but are natural and foreseeable consequences of the execution of the intended crime.
109
What is the subjective element of deviatory/incidental crimes?
The accused foresaw a risk that the additional "incidental" crime may take place, and accepted that risk by continuing to participate in the common criminal plan (dolus eventualis).
110
What are the approaches to defining co-perpetration responsibility?
1. The formal-objective approach
2. The subjective approach
3. The material-objective approach
111
What is the formal-objective approach to co-perpetration responsibility?
When the crime is carried out by a plurality of individuals, only those participants whose acts constitute the objective elements of the crime's definition are co-perpetrators.
Found in the UK and Bulgaria.
112
What is the subjective approach to co-perpetration responsibility?
When the crime is carried out by a plurality of individuals, only those participants who have the mind-set of perpetrators (animus auctoris)- in that they want the group crime as their own- are perpetrators. Those who do not identify with the crime and whose wills are simply to support the crime of another person (animus socii) are accessories.
Found in Netherlands and South Africa
113
What is the material-objective approach to co-perpetration responsibility?
When the crime is carried out by a plurality of individuals, only those participants whose acts were essential for the commission of the group crime, i.e. without whose contribution the crime would not have occurred, are co-perpetrators.
Found in Belgium and Spain
114
What is an inchoate crime?
A type of crime that is completed when a person takes punishable steps towards the commission of another crime (a.k.a. incomplete crimes)
115
What are the types of inchoate crimes?
- Attempt
- Conspiracy
- Incitement
115
What is attempt?
An inchoate crime. Trying to commit a crime, but failing to complete it
116
What are the objective and subjective elements of attempt?
Objective: Taking a substantive (more than merely preparatory) act towards the commission of a crime
Subjective: Intending to commit a crime
116
What is incitement?
An inchoate crime. Involved encouraging, persuading or urging another person to commit an offence. Unlike conspiracy, incitement does not require an agreement.
116
What is conspiracy?
An inchoate crime. An agreement between two or more people to commit a crime. The crime does not need to be completed; unlike co-perpetration.
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What are the subjective and objective elements of conspiracy?
Objective: Agreeing with another person(s) to commit a crime.
Subjective: The intent to agree and the intent to carry out the agreement's substantive offence
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What are the categories of defences?
- Justifications
- Excuses
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What are the objective and subjective elements of incitement?
Objective: Directly and actively provoking another person to commit a (serious) crime
Subjective: Direct intent that the substantive crime be committed, or at least awareness and acceptance of the risk of it occurring (dolus eventualis)
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What is a justification?
A type of defence. It negates the wrongfulness of the act. Justifications generally have a legitimising effect, meaning there is no criminal act. If there is no criminal act, then no criminal liability exists for any accessories. Justifications can be legally aided.
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What is an excuse?
A type of defence. Negates the culpability of the accused for their wrongful actions. Does not negate the wrongfulness or criminality of the act, just the accused's culpability. Excuses cannot be legally aided. They have a pardoning effect, exclusively for the individual who claims the excuse.
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What is a mitigating excuse?
A partial excuse, which mitigates the accused's penalty. Does not fully exonerate them.
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What are the types of excuse?
- Mitigating: a partial excuse.
- Exculpating: a complete excuse.
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What is an exculpating excuse?
A total excuse, which exonerates them of a crime.
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What is a substantive defence?
A defence which negates the essential elements of a crime, denying the criminality of an act. These address the facts or the law itself. The accused was justified to act as they did, or is not culpable for their actions. E.g. self defence or lack of intent
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What is a procedural defence?
Focuses on the issues regarding the legal process. They argue that the defendant should not be prosecuted due to procedural issues. E.g. immunities, entrapment, statute of limitations.
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What is the moral significance of distinguishing between excuses and justifications?
Justification: defendant's (harmful) conduct was not unlawful; they were right to act the way they did. Absolves the defendant of any blame and responsibility and provides them with a legal validation of their conduct.
Excuse: Defendant's conduct was unlawful, but it would be unjust to hold them responsible. Tells the defendant that they did act wrongfully, but that they are exonerated because society sympathises with their predicament (+ for defendant). Also, the perpetrator's conduct is officially labelled as wrong, and they can still be held liable to pay damages in court (+ for victim)
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What are the excuse defences?
- Mental defect
- Intoxication
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What are the justification defences?
- Self-defence
- Duress
- Necessity
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What is mental defect?
A type of excuse defence, also known as insanity. The person suffers from a mental disease or defect that destroys that person's capacity to appreciate the unlawfulness or nature of their conduct, or capacity to control their conduct to conform to the requirements of the law. Must have occurred at the time of the commission of the crime.
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What is complete v partial destruction of cognitive or volitional capacity?
Complete destruction= exculpating excuse
Diminished/partial destruction/capacity: partial excuse.
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What is intoxication?
A type of excuse defence. The person is in a state of intoxication that destroys that person's capacity to appreciate the unlawfulness or nature of their conduct, or capacity to control their conduct to conform to the requirements of the law, unless that person has become voluntarily intoxicated under such circumstances that the person knew, or disregarded the risk, that, as a result of the intoxication, they were likely to engage in conduct constituting a crime.
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What is voluntary intoxication?
Generally not a feasible excuse for a crime. When someone purposely gets intoxicated and commits a crime.
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What is involuntary intoxication?
Generally a feasible excuse. When you become intoxicated without consent.
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What is mala fide voluntary intoxication?
Could be an aggravating factor when sentencing a perpetrator. "bad intent" when getting intoxicated (could be to get courage)
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What is bona fide intoxication?
Very limited possible uses as a legitimate excuse. It is the act of wanting to get intoxicated.
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What is self-defence?
A justification defence. The person acts reasonably to defend themselves or another person (or property) against an imminent and unlawful use of force, in a manner proportionate to the degree of danger to the person of other person or property protected. The accused's harmful conduct must always be directed against the person who is the source of the unlawful threat.
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What requirements are there for a justification to constitute self-defence?
1. "imminent"- direct and ongoing threat
2. "unlawful"- the defence is against a criminal act
3. "reasonable"- the accused must have used necessary and adequate force, the minimum necessary
4. "proportionate"- the accused must not cause greater harm than the one sought to be avoided.
All must be proven to claim self-defence.
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What is duress?
A justification defence. The crime has been caused by duress resulting from a threat of imminent death or imminent serious bodily harm against that person or another person, and the person acts necessarily reasonably to avoid this threat, provided that the person does not intent to cause a greater harm than the one sought to be avoided.
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What requirements are there for a justification to constitute duress?
1. "imminent"- direct and ongoing threat
2. "reasonable"- the accused must have used the minimum necessary force to avoid the threat
3. "proportionate"- the accused must not cause greater harm than the one sought to be avoided.
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What is necessity?
A type of justification defence. A person who, faced with an imminent danger to life, limb or another legal interest which cannot be otherwise averted commits an act to avert that danger from himself or another person, does not act unlawfully, if upon weighing the conflicting interests, in particular the affected legal interest and the degree of the danger facing them, the protected interest substantially outweighs the one interfered with. This shall only apply if and to the extent that the act committed is an adequate means to avert the danger.
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What requirements are there for a justification to constitute necessity?
1. "imminent"- direct and ongoing threat
2. "reasonable"- the accused must have used the minimum necessary force to avoid the threat
3. "proportionate"- the accused must not cause greater harm than the one sought to be avoided.
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What were the findings from Scoppola v Italy?`
That an accused not only has a right to not receive a harsher punishment if laws are changed during the legal process- but also that they have the right to receive lex mitior, i.e. the most beneficial punishment
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What were the findings from Salduz v Turkey?
That an accused has the right to a lawyer not just during trial proceedings, but from the first moment they enter into custody/from the beginning of pre-trial proceedings.
