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Comparative Criminal Law- complete summary week 3
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Week 3 The Act requirementCriminal law requires an ‘act’. At first blush, this seems rather unproblematic. After all, one is
inclined to consider it as self-evident that the state is only authorized to re-act if some
distortion in physical reality occurs that causes harm and impinges on legally protected
interests.
On closer scrutiny, however, the act-requirement poses some difficult issues.
1) The question of omissions.
If a ‘positive’ act is required, how are we to understand that criminal law sometimes engages in
omissions as well?
- Does criminalization of omissions not interfere with the freedom of thought?
- What is exactly the difference between ‘true’ omissions and ‘commission by omission’?
Fletcher argues that the distinction between commissions and omissions is a fallacy.
Assignment.
Explain how Fletchers addresses the questions above and why he arrives at that conclusion.
2) The problem of corporate criminal responsibility.
Acting presupposes the functioning of human muscles and human mind. Corporations are legal
abstractions which do not act in a true sense. We can only metaphorically speak of ‘acting
legal entities’, when the acts of natural persons are attributed to them. Moreover, punishment
of legal entities is problematic as they have ‘no body to kick and no soul to damn’.
Nonetheless, while some states – notably Germany – are adamant to introduce corporate
criminal responsibility, the latter is a fairly universally acknowledged phenomenon.
Consider the following case.
The Dutch-British multinational Plurikidney has a leader position in the international food
industry with branches all over the world. A local division of the company, established in the
Afghan capital Kabul, has recently acquired negative publication, due to doubtful practices.
There has been a remarkable rise in infant mortality and there are strong indications that this
may have been caused by the fact that the parents of the deceased children have nurtured
their offspring with baby milk which has been produced by Plurikidney’s subsidiary. Laboratory
research reveals that the baby milk contains high concentrations of dioxin that has entered the
food stuff by the use of contaminated equipment. The management of Plurikidney orders the
,baby milk to be taken from the assortment, but makes no further moves. After having been
reprimanded, the Head of Production may simply continue his work.
Furthermore, the management of the Afghan division has subcontracted the protection of
company premises, employees and property against attacks by the Taliban to the private
security firm ‘Bulldog’. The security firm engages rough folk who are not able to distinguish
between Taliban-fighters and the local civilians. On a dark night, things seriously go awry. Some
twenty members of Bulldog attack a small village. Assuming that the locals support the Taliban,
the security people ravage the place. Under the influence of drugs and alcohol, they burst into a
mosque, destroy holy attributes, rape women and kill four civilians. Plurikidney’s management
is appalled. The culprits are fired forthwith and the management presses for criminal charges.
However, the contract with Bulldog is not cancelled.
If this is not enough, the Afghan’s division’s head of diversification is suspected of corruption.
Rumour has it that he has offered bribes to Afghan food controllers, in order to cajole them to
turn a blind eye to the control of meat-products being in conformity with Islam food
prescriptions. The head of diversification is renowned for his energy and ambition,
determined to raise the profits of Plurikidney considerably. However, he has obviously acted on
his own account, because any negotiations with the Afghan government are definitely beyond
his authority.
Assignment
Let us assumes that your country would have jurisdiction to prosecute and try the company
Plurikidney. Discuss and analyse the chances that a prosecution of the company and/ or its
management will result in a conviction.
Literature
- Keiler & Roef, Chapter IV (Commission versus Omission)
Chapter 5: Commission versus omission, Johannes Keiler
I. Introduction
SP: Regardless of the qualification of offences, there is one common element without which no criminal
liability can arise => because the actus reus doctrine requires some sort of conduct, something “done” by
the defendant thus, all penal systems generally agree that the imposition of criminal liability requires at
the very least some form of conduct, controlled by the perpetrator.
, However, human conduct can take different forms => humans can bring about certain results by
either taking positive steps to achieve a certain result or by failing to intervene and let events run
their course when the law would have demanded an intervention.
Traditionally legal doctrine stipulates that criminal liability is predicated on some form of
positive action => this requirement is in legal theory often referred to as the “act requirement”.
However, this term is slightly misleading as it suggests that the imposition of criminal
liability always required a voluntary act => this is however a misconception as criminal
justice system also frequently punish the culpable omission of an act expected of a person by
law.
This suggest that there may be more to acts than mere voluntary movement.
II. Offences of COMMISSION: the theory of conduct and the baseline of criminal liability
A fundamental question is whether or not a conduct has occurred, which warrants the application of
criminal law and sanctions. Criminal law ought to treat citizens as responsible subjects rather than objects
of state coercion criminal law is therefore thought to be founded on the principle that a person must
have been responsible for his or her actions in order to be held liable and to be punished. Fletcher:
“A subject is someone who acts, and an object is someone or something that is acted upon”.
It is now widely recognized that only subjects can incur responsibility (and not animals or inanimate
objects).
1. Different theories of conduct
Over the years, different theories have emerged that try to establish a unitary concept of conduct that can
serve as a basis for the process of attributing criminal liability.
a. The CAUSAL theory of action: or the ghost in the machine
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