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Comparative Criminal Law- complete summary week 7
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Comparative Criminal LawWeek 7
Keiler & Roef
Chapter VII – Forms of participation
2. Terminology and some conceptual challenges
2.1. Terminology
Perpetrator:
- Liability is primary, i.e. can be established independently of all other parties involved in
commission of offence.
- Direct liability & not derived from someone else’s wrongdoing principal offender
Accomplices/accessories:
- Liability is derived from wrongdoing of perpetrator liab is secondary/accessory
- In civ law systems includes aiding & instigation
- In common law systems this category refers to notions of aiding, abetting, counselling and procuring
Participant
- Any partner in crime, i.e. this encompasses perpetrators and accomplices
2.2. The equivalence of perpetrators and accomplices
- How to define relationship betw different participants in terms of their responsibility and
then punishment
- 2 Different approaches:
1. Categorisation of participatory conduct into different modes varying degrees of punishment
(each participant liable according to his particular contribution)
2. Equivalence theory: Consider everyone participating to have committed the offence & leave
meting out of punishment to discretion of court. – All participants should be held liable &
punished same way. (Common law jurisdiction prefer this approach) – This utilitarian way
of thinking about participation stated in S8 Accessories & Abettors Act 1861
- 2 different approaches reflected in terms of sentencing: D, NL recognise obligatory mitigation of
punishment for accessories. Eng: in favour of equivalence theory not officially impose mitigated
punishment for lesser forms of participation (although punishment can be mitigated at sentencing
stage by judicial/prosecutorial discretion distinction is superficial)
2.3. The derivative nature of complicity
- Both above mentioned approaches adhere to derivative model of accessorial liab
- No one is charged with complicity in abstract. There must be a principal offence accessorial liab
derivative by nature
- It must derive from ‘something’ (Fletcher). What is ‘something’? Common ground in all penal systems
for ‘liab of accomplice to be derived not from specific status & culpability of perp but from wrongfulness
of the crim offence itself’. perp must have at least acted wrongfully/unlawfully that his conduct was
not justifiable
, lOMoARcPSD|1205463
- Defences personal to perp himself (excuse like insanity) do not sever derivative link – defences of
gen application (justifications like self-defence) break derivative link
- Derivative relationship: perp must have at least attempted/prepared to commit crim offence
for accessorial liab to arise
2. 4. Mens rea and deviations from the original plan
- Primarily a problem of mens rea: how does participant have to know about what other part end
up doing in order to be crim liab for crime that is actually committed?
- Problem: actual perpetrator commits another offence than originally intended by instigator
(collateral offences)
- Problem particularly relevant for ‘joint criminal enterprise’-crimes: when several part made
common plan to commit an offence, go ahead and commit it, but one participant commits a
separate offence, which goes beyond original plan
3. Participation in Germany - introduction
- D penal code distinguishes betw perpetrators (Täterschaft) and secondary participation (Teilname)
- 5 different categories of participation in crim offence, which can be summarised again into 3 forms of
perpetration: 1. Direct perpetration and 2. perpetration by means (§25(1) GCC), 3. Co-perpetration;
as well as 2 forms of secondary participation: instigation (§26 GCC) and aiding (§27 GCC)
1) Perpetrators: commit offences themselves (accomplices participate in wrongdoing of another)
2) Perpetrator by means commits offence through another by using him as a tool to commit
the offence
3) Co-perpetrators commit offence jointly
4) Instigator incites another to commit the offence in question
5) Aider assists another in commission of the crim offence
- D crim law distinguishes betw different forms of part at level of attribution in terms of nature/degree
of responsibility. Degree of responsibility grouped into different degrees, which diminish from perp to
the accomplice. Perp eligible to full punishment, while aiders granted a mandatory mitigation of
punishment (§27 GCC) due to their auxiliary role. Instigator takes medium position as he is eligible for
same punishment as perp (§26 GCC)
3. 2. Distinguishing perpetrators from accomplices
- Aider’s wrongdoing & culpability of crim offence less than that of perpetrator, distinction betw
two important in D law
- Hegemony over the act doctrine to distinguish betw perpetrators & accomplices: criterion of
perpetration is hegemony and control over execution of crim act person will be held liable as perp if he
controlled commission of offence, influenced shape and manner of commission and can thus be seen as
central figure in the crime. An accessory is deemed not to be in position to considerably shape
commission of offence intention of perpetrator and his factual contributions to manifestation of actus
reus need to be taken in consideration. Actus reus of crime vantage point for evaluation, extended by
obj (hegemony and control over execution of crime) & subj criteria (intention of person, who must
desire to exert hegemony over the act & intend manifestation of offence). If person’s conduct is merely
meant to support acts of the other(s) but influenced neither mode of planning nor commission of the
offence more likely to be considered accessory.
- Person can possess hegemony over the commission of the offence, despite not being directly
& physically involved in it (e.g. boss of organised crime syndicate).
- Absence at factual commission may not stand in way of imposing liab as perp if it can be proven that
defendant played instrumental role in preparatory/planning stage of the offence
3. 3. Direct perpetration
- §25(1) GCC, sole/direct perpetration, restrictive concept in D. Anyone who by his own hand brings
about actus reus of offence is perpetrator.
, lOMoARcPSD|1205463
3.4. Perpetration by means
- Determined by hegemony over the act doctrine like direct perp, since it is a form of perpetration
- §25(1) GCC def: ‘perpetrator by means is person who commits crim act through another’: uses
another person as instrument to bring about offence.
- Other person will not be liable for various reasons
- Required: deed can be viewed as controlled by will of perp behind scene & that influence controls
the ‘instrument’. Relationship of ‘instrument’ and perpetrator behind scenes must be of
subordination, which can stem from a variety of reasons.
- Relationship of subordination bight be when perp behind scenes controls will of instrument e.g. by
force, threat, where other person acts under duress, superior knowledge (infant/insane person),
where other person acts due to mistake
- Instrument is to be treated more mildly by law due to his mistake in comparison to situation had he
not been mistaken
- Controversial form of participation by means: Person’s power within an
organisation (Organisationsherrschaft)
- Perp by means applicable in circumstances where on side of ‘instrument’ a lack of guilt, wrongdoing
or fulfilment of all elements of offence definition cannot be established
- ‘Sirius case’ (emotionally & intellectually retarded victim) Supreme Court convicted def for attempted
murder by perpetration by means, arguing he had used his superior knowledge to use woman as
instrument against herself.
3.5.1 Co-Perpetration – General requirements
- §25(2) GCC co-perpetration requires joint commission of offence by several persons. Hegemony
over the act (HOTA) doctrine also applied as this is form of perpetration
- HOTA rests jointly on co-perp rather than on one individual
- In light of role allocation in common plan, responsibility for offence is imputed to particular
co-perpetrators
- Common plan rests on each participant & each is equal partner in joint commission of offence
respective contributions to deed add up to whole & result of offence can be attributed to each
participant.
- Consensus among participants can be reached explicitly/implicitly before commission of
offence/in course of execution of the offence
- Co-perpetrator does not need to know all details of common plan, he must know the essential aspects
of it
- Obj point of view: co-perpetration requires each participant makes essential contribution to the
deed. Essential if commission of deed would fail without the contribution (e.g. involvement in actual
commission of the crime, but also rendered earlier at prep stage (it must ‘linger on’ in commission of
crime))
- D cigarettes smuggling case: Supreme Court: co-perp not barred by fact that def did not carry out
actions proscribed by actus reus of offence of smuggling. Sufficient that def on basis of common plan
& crim intention contributed to commission of offence (also prep/other supportive conduct)
3.5.2 Deviation from the common plan
- Actions of co-perp that exceed common plan cannot be attributed to other participants, particularly
if perp commits entirely different deed than intended by common plan
- Minor deviations from common plan can be attributed to other participants, if of kind one could
reasonably expect in execution of crime and if they do not essentially alter severity/ dangerousness
of the offence
- Cardinal question (resemblance to English stance) ‘whether act committed by one of perpetrators
was fundamentally different from performance of common plan as foreseen by co-perp’
- Supreme Court formulated principle: ‘Co-perps will be liable for any acts that lie within range of typical
offence one can expect to be committed given circumstances of case, namely if these acts will reach the
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