Forms of participation? Flashcards
1
Q
What is the difference between a perpetrator, an accomplice and a participant?
A
- Perpetrator = A person whose liability is primary and can be established independently of the other parties
- Accomplice = A person whose liability is derived from the wrongdoing of the perpetrator
- Participant = Any partner in crime (including perpetrators and accomplices)
2
Q
Is there a difference in punishment between perpetrators and accomplices?
A
- GR and NL - Obligatory mitigation of punishment for accomplices
- EN - Does not officially impose a mitigated punishment for lesser forms of participation - Applies the ‘equivalence’ theory
3
Q
How do you distinguish between perpetrators and accomplices in GR?
A
Hegemony over the act doctrine - Factual control (influence over the shape and manner of the commission) + Intention to exert hegemony and intention that the offence will be committed
4
Q
GR - Direct perpetrator
A
- Anyone who, by his own hands, brings about the actus reus of the offence
5
Q
GR - Perpetration by means
A
- When a person uses another person as an instrument to bring about the offence
- That other person will not be liable - Use the hegemony over the act doctrine - There must be subordination - The instrument must show a lack of guilt or wrongdoing
6
Q
GR - Co-perpetration
A
- Use the hegemony over the act doctrine
- The common plan rests upon each participant and each participant is an equal partner in the joint commission of the offence
- No need to know the exact details, only the essential ones
- Each participant must make an essential contribution
7
Q
GR - Deviations from the common plan
A
- Minor deviations can still be attributed to the other participants if they are of a kind which one could reasonably expect and if they do not essentially alter the severity or the dangerousness of the offence
- If the act was fundamentally different from the performance of the common plan - Not attributed to the other participants
8
Q
GR - Instigation
A
- Requires the actual commission of an offence
- Causing someone to commit an intentional and unlawful act
- Can be explicit or implied commitment - As long as it caused a psychological change in the mind of the intermediary (the intermediary did not want to commit the offence before but now changed his mind) - Does not need to be the condition sine qua non, just one of them
- The instigator must evoke the will to commit the offence + Intentionally induce the commission of the offence + intend for the offence to be committed
- Dolus eventualis is enough
- The instigator must know the essential elements of the crime
9
Q
GR - Aiding
A
- Requires the actual commission of an offence
- Any conduct that furthered or made the commission of the offence easier, more secure or more swift
- (i) a person intends to assist the act and (ii) he knows the essential matters that constitute the objective elements of the offence (must know the type of crime)
- Dolus eventualis is enough
10
Q
NL - Direct perpetrator
A
- Factual perpetration
- Functional perpetration - (i) power (factual control over the suspect) and (ii) acceptance (intentional involvement in the conduct factually committed by another actor)
11
Q
NL - Deviation from the common plan
A
If foreseeable - Dolus eventualis will bridge the gap
12
Q
NL - Co-perpetration
A
- Those who commit the offence jointly shall be punishable as perpetrators
- Conscious, complete and close cooperation - Common plan, exchangeability of roles, intensity, clear division of tasks, equal sharing of the booty, essential contribution
- Physical presence is not necessary - But the role in preparation must have been significant
- Deviation from the common plan - Accepted if they are of a kind which could be reasonably expected (= dolus eventualis)
- Failure to distance oneself on its own is not enough
13
Q
NL - Perpetration by means
A
- To hold the person behind the scenes criminally liable if the factual perpetrator himself is innocent
- Barely used now because of functional perpetration
14
Q
NL - Instigation
A
- The instigator must have caused a psychological change in the mind-set of the intermediary - But need not be the sole cause
- Means - Gifts, promises, abuse of authority, use of violence, threat or deception and providing the opportunity, means or information - Very broad
- Must amount to more than a simple encouragement - The information must be factual
- Mens Rea - The instigator must intentionally induce the commission of the offence and must intend for the offence to be committed
- Attempted instigation is also criminalised - If the intermediary changes his mind
15
Q
NL - Aiding
A
- Concurrent forms of aiding - The accessory assists during the commission - The aid furthered or facilitated the commission
- Preceding forms of aiding - The accessory provides the opportunity, means or information necessary - The aid facilitated of made the commission of the offence possible
- Broad interpretation of the means that can be used
- Need not be the condition sine qua non
- (i) the person intends to assist the act and (ii) knows the essential matters
16
Q
EN - Perpetration
A
- The person whose act is the most immediate cause of the actus reus
- There can be more than one
17
Q
EN - Perpetration through innocent agency
A
- When a person acted without the necessary mens rea - The master behind the scenes is the perpetrator
- The person whose act is the most immediate cause of the innocent agent’s act
18
Q
EN - Aiding
A
- Assisting, helping or giving support - Broad approach - Helped, facilitated the offence to commit it more easily or with greater safety - Need not be the condition sine qua non
- Does not require consensus between the perpetrator and the aider
- Mens Rea - Must intend to aid, must know the essential matters + Includes intention, wilful blindness and subjective recklessness (foresaw a real or substantial risk or real possibility)
19
Q
EN - Abetting
A
- Incite, instigate or encourage - The participant did in fact encourage - Its must have been communicated successfully to the principal
- Does not need to have made a difference in the outcome - As long as the principal was aware of the encouragement
- Mens Rea - Must intend to abet, must know the essential matters + Includes intention, wilful blindness and subjective recklessness (foresaw a real or substantial risk or real possibility)
20
Q
EN - Counselling
A
- To advice, solicit or encourage
- To provide advice or information
- To urge someone to commit an offence
- There must be a connection between the counselling and the commission
- Mens Rea - Must intend to counsel, must know the essential matters + Includes intention, wilful blindness and subjective recklessness (foresaw a real or substantial risk or real possibility)
21
Q
EN - Procuring
A
- To produce by endeavour - By means or to bring about the commission of an offence by another who is not an innocent agent (by persuasion, inducement or threats)
- The perpetrator must be aware of the procurement
- Mens Rea - Must intend to procure, must know the essential matters + Includes intention, wilful blindness and subjective recklessness (foresaw a real or substantial risk or real possibility)
22
Q
EN - Joint Criminal Enterprise
A
- Several people set out to commit crime X in the course of which another unplanned crime Y is committed
- Powel and English - Defendants will be held liable if they foresaw it as an incidence of the joint venture - If the act was not objectively foreseeable, the participants will not be held liable
- Overturned in R v Jogee - Intent is required, not just foreseeability, but foreseeability can be used to show intent
23
Q
What are the different forms of participation in civil law?
A
- Direct perpetrator
- Co-perpetrator
- Aiding
- Instigator
- Perpetration by means
24
Q
What are the different forms of participation in common law?
A
- Perpetrator
- Perpetration through innocent agency
- Abetting - (= instigating)
- Counselling
- Aiding
- Procuring
