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Comparative Criminal Law- complete summary week 4
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Comparative Criminal Law- complete summary week 4
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Week 4 The mental aspect of crimeCriminal law doctrine is not satisfied by the perpetrator’s accomplishing a kind of wrongful conduct, it
also requires that the act is committed with a certain state of mind. In common criminal law this is
habitually denoted as mens rea (‘guilty mind’) which encompasses both a volitional and a cognitive
element. The perpetrator must have intended his action and must have known the physical and social
purport of his deed. However, this ‘shorthand’ raises a number of difficult questions.
1) Does the ‘intent and knowledge’ only refer to the act itself, or also to the further consequences?
2) How can one intend a result, if one is not certain whether it will materialize?
3) Are the intent and knowledge restricted to the act – purely and simply -, or must the
perpetrator have been aware of the act being wrongful/ unlawful/ ‘evil’?
4) Are motives relevant in the assessment of ‘intent’, or are they only taken into consideration in
the determination of punishment?
5) Are there any justifications under the general theories of criminal punishment – retribution,
incapacitation, general deterrence – for holding those criminally responsible who do not intend
a crime but produce harm by being ‘inadvertently negligent’?
6) If someone does not specifically intend the consequence of his action, what should be decisive
for his/her criminal responsibility: the probability that the consequences will occur or his/ her
attitude towards those consequences?
7) The previous questions are all included in the fundamental issues that Hart raises (Punishment
and Responsibility, p. 113):
a) Why should the law define the offences which it punishes in such a way as to make this
state of mind or will, and not that, a necessarycondition of liability or punishment?
b) Why should this kind of behaviour be more severely punished than the same kind of
behaviour if it is accompanied by this state of mind or will rather than that?
Consider the previous questions - and the fundamental ones, raised by Hart, in particular – when
addressing the mens rea and criminal responsibility of the dramatis personae in the following cases.
Case 1)
On Sunday 21 April 2013 an anonymous threat on Internet, announcing a bloodbath at an unspecified
school in Leiden caused panic in the little provincial university town. All schools were preventatively
closed. The messenger – a guy named ‘Buck’ – indicated that he would first shoot a teacher in Dutch
language and next would randomly wreak havoc, suggesting that he had to settle a score. It soon
transpired that Buck was a former student of a high school in Leiden who had been on holiday in Costa
Rica when he posted the message on the Internet.
After some weeks, it became clear that the ‘avenger’ had not acted alone. Buck had received some
unsolicited assistance from a female co-student, Jantien who had been secretly in love with him. She
had created a page on Facebook, inviting lots of friends and acquaintances in Leiden and surroundings.
Suddenly, Buck had made his entrance with his ominous message. Jantien and her gloomy Adonis had
often discussed the Colombine massacre and she had relished the prospect of helping him spreading
,the word, although she had never thought that Leiden would have taken the threat seriously. And
indeed, the threat turns out to be a hoax.
Discuss whether Buck and Jantien may incur criminal responsibility for having committed a terrorist
offence and how the ‘terrorist motive’ fits into the structure of mens rea.
For your information:
The EU Council Framework Decision on Combating Terrorism defines a terrorist offence as an intentional
act of violence, committed with the aim of:
- Seriously intimidating a population, or
- Unduly compelling a Government or international organisation to perform or abstain from
performing any act, or
- Seriously destabilising or destroying the fundamental political, constitutional, economic or
social structures of a country or an international organisation.
Violent acts include (i) attacks upon a person’s life which may cause death and (ii) threats to commit
such attacks. The Netherlands have fully implemented the EU Framework Decision.
Case 2)
The movie München, directed by Steven Spielberg, tells the story of the retaliation by the Israeli secret
service agency Mossad, led by prime minister Golda Meïr, against the plotters of the terrorist assault on
the Israeli sport team during the Olympic Games in München in 1972 (Black September). One of the
scenes evokes the moral dilemma of two Israeli secret agents who are about to kill a Palestinian attaché,
allegedly having been involved in the planning of the terrorist assault, by detonating a car bomb. They
discover too late that the attaché is accompanied by his daughter who perishes by the explosion as well.
Let us assume that the secret agents stand trial for both killings. They admit that they had intended to
kill the attaché, but add that they obviously never had wished to hurt the child. They had assumed that
she would be at school and had even made previous investigations to reassure themselves that the
attaché would be alone. To their great dismay, they had found that plans had changed.
Case 3)
John and Mary are very happy with their new dwelling, situated at the top of a hill in the French
countryside. As their garden is literally strewn with large boulders, they decide, one a sunny autumn
afternoon, to roll those big stony monsters from the hill. Not very clever, because they have apparently
omitted to explore the surroundings. One of the largest boulders crashes into the sauna hut, down the
hill, of monsieur jean Jacques Tibaudetwho is just taking a bath, instantly killing the elderly gentleman.
John and Mary are understandably totally shocked, as they never had considered such an awful
accident.
, Case 4)
Wicko and Wacko boast about being professional bank robbers. Well, apparently not professional
enough, because they are unfamiliar with the latest anti-burglary devices. The secret code that they
have to tap in order to gain access to the AMRO- Bank’s deposits is similar to the mobile number of the
security guards. The latter are surprisingly quick at the scene of the crime. Head over heels, Wicko and
Wacko leave the sumptuous building and they manage to escape in their C-X74 Hybrid Jaguar. They are
chased during a wild west pursuit by the security guards and increase the speed to 160 kilometres/ hour
because they wish to stay out of the hands of their pursuers at all costs. Just after a bend in the road
they run down an elderly lady who walks the pedestrian crossing. The unfortunate lady dies from the
wounds sustained by the accident shortly after.
Wicko and Wacko are prosecuted on charges of manslaughter in the first degree.
Literature:
- H.L.A. Hart, Punishment and Responsibility; Essays in the philosophy of law, 2nd ed. ,
Oxford 2011, Chapter V (pp. 113-135)
(i) Why should the law define the offences which it punishes in such a way as to mate
this state of mind or will, and not that, a necessary condition of liability to
punishment ?
(ii) Why should this kind of behavior be more severely punished than the same kind of
behavior if it is accompanied by this state of mid or will rather than that?
This empirical approach will force us to refine the deceptively simple-looking ideas of
retribution, deterrence etc. […] In this essay, I shall try out to in a limited field this more
empirical approach by focusing attention on the place which the criminal law of most countries
allocates to the idea of intention as one of the principal determinants both of liability to
punishment and of its severity – matter of mens rea.
2 stages of relevance : conviction and sentencing.
- Relevant at a first stage : can this man be convicted of this crime ?
o Sometimes duress or provocation or mental abnormality will be relevant and
negate the mens rea. But the scopes of each are narrow.
- Relevant at a second stage, after conviction, when asking “How severely is the accused
to be punished”. Sometimes, the legislature will mark off greater penalty for things done
with a certain intention than for the same thing done without it (eg. Wounding with the
intention to kill).
The law’s concern with intention at these two different stages (conviction and sentence)
generates a number of problems, some of which I consider here.
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