Actus Reus and Participation in European Criminal Law (School of Human Rights Research 60)
By: Johannes Keiler (author)Paperback
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With the coming into force of the Treaty of Lisbon the competences of the European Union in the realm of criminal law have greatly expanded. The Union, in a multitude of legislative instruments, requires its Member States to criminalize a big variety of harmful conducts. However, the criminal law legislation of the European Union has so far almost exclusively focused on specific criminal offences and has failed to develop and define general principles of criminal law. The Union frequently refers to conduct, attempt and participation in its legislation but fails to determine what these concepts should denote to. As a result the scope of European criminal law may differ among European countries as Member States will apply their national doctrines to European legislation. This book aims to step in this lacuna by establishing what actus reus and rules on participation should look like in European criminal law. In addition it investigates inchoate offences and corporate criminal liability. How should the doctrines of conduct, omission and causation be defined? How to attribute liability in case several people cooperate to bring about a criminal result?
What should preparing and attempting a crime denote to in European criminal law and how can corporations best be held responsible for the harm they have caused? To answer these questions this book distills common general principles on actus reus, participation, inchoate and corporate liability from the national criminal justice systems of the Member States as well as from European Union law. These results are subsequently merged into coherent principles of European criminal law.
Chapter I. Introduction 1. European criminal law 2. The need for a general part 2.1. Practical Relevance 2.2. Theoretical relevance 3. Research questions 3.1. Introduction 3.2. Elaborated research questions and outline 3.2.1. Perpetration 3.2.2. Participating in crime - the multiple actor scenarios 3.2.3. Inchoate liability 3.2.4. Corporate Criminal liability 4. Methodology 4.1. Introduction 4.2. Comparative research 4.2.1. The investigated penal systems 4.2.2. Comparative methodology 4.3. Criteria for synthesis 4.3.1. External criteria for the synthesis 4.3.2. Internal criteria for the synthesis 5. Criminal Liability 5.1. Definition 5.2. Harm versus Culpability and Objectivism versus subjectivism in the law 5.3. The framework of criminal liability 5.4. Criminal liability in the risk society Chapter II. Perpetration - The elements of crime 1. Introduction 2. The doctrine of conduct or the conundrum of the baseline of criminal liability 2.1. Introduction 2.2. The doctrine of conduct and the criminal law's image of man 2.2.1. The image of man in the Risk Society 2.2.2. Is criminal liability confined to human conduct? 2.3. Different theories of conduct 2.3.1. The causal theory of action - or the ghost in the machine 2.3.2. The teleological theory of action - human conduct is "seeing", not blind 2.3.3. The social theory of action - significance lies not in the act but in the context in which it is born 2.3.4. The normative act requirement - the legal normative view 2.4. The conduct requirement in practice 2.4.1. Loss of physical control 2.4.2. Impaired consciousness 2.5. The underlying rationale of the conduct requirement 2.6. Conclusion 3. Omissions: Criminal liability in absence of physical action? 3.1. Introduction 3.2. Omissions in criminal law 3.2.1. Statutory duties of care 3.2.2. Commission by omission 3.3. Conclusion 4. Causality 4.1. Introduction 4.2. The conditio sine qua non or the 'but for' test 4.3. The theory of proximate cause 4.4. The theory of adequate causation 4.5. The relevance theory 4.6. Causation in Criminal Law in England, the Netherlands and Germany 4.6.1. The legal principled approach 4.6.2. The metaphysical/normative approach 4.6.3. The normative/legal approach 4.7. Evaluation 4.8. Conundrums of causation 4.8.1. Predispositions of the victim 4.8.2. Conduct of the victim breaking the chain of causation 4.8.3. Medical interventions 4.8.4. Drug administration cases 4.9. Causation in European Union Law 4.10. Conclusion Chapter III. Modes of liability - The multiple actor scenarios 1. Introduction 2. Terminology and outline 2.1. Terminology 2.2. Outline 3. Unitarian and differentiated concepts of participation 4. The derivative nature of the accomplices' liability 4.1. Introduction 4.2. Rationales for secondary liability 4.3. The nature and quality of the derivative relationship 5. The concepts of participation in England: a short introduction 5.1. The English approach to participation 5.2. Secondary forms of participation 5.2.1. Actus reus 5.2.2. The fault element in complicity 5.3. An expansion of liability - The Serious Crime Act 2007 6. Perpetration: Choices and Dilemmas 6.1. Introduction 6.2. A Restrictive or extensive conception of perpetration? 6.2.1. The different connotations of perpetration 6.2.2. The restrictive concept of perpetration 6.2.3. An extensive concept of perpetration 6.3. A Subjective or objective approach to perpetration? 6.4. Concluding remarks 7. Vertical forms of perpetration 7.1. Introduction 7.2. The Perpetrator behind the scene 7.2.1. The German hegemony over the act doctrine 7.2.2. The Dutch doctrine of functional perpetration 7.2.3. The English doctrine of vicarious liability 7.2.4. Evaluation 7.3. Perpetration by means 7.3.1. The traditional scope of the doctrine 7.3.2. The different designs and limitations of the doctrine 7.3.3. Extending perpetration by means 7.3.4. Concluding remarks 7.4. Instigation 7.4.1. Introduction 7.4.2. Instigation in Germany and the Netherlands 7.4.3. The fault element of instigation 7.4.4. Errors of the perpetrator and their effect on the instigator 7.4.5. The means of instigation in the Dutch penal system 8. Horizontal forms of perpetration 8.1. Co-perpetration 8.1.1. Expanding the scope of mutual attribution 8.1.2. Is mere presence sufficient to establish co-perpetration? 8.1.3. The limits of mutual attribution 8.2. The English doctrine of joint criminal enterprise 8.3. Concluding remarks 9. Assisting a criminal offence 9.1. Introduction 9.2. Assistance in the Netherlands, Germany and England/Wales 9.3. The scope and nature of assistance 9.3.1. The scope of assistance 9.3.2. The nature of assistance 9.4. The furthering effect of aid (causality) 9.5. The fault element of assistance 10. Limitations to participatory liability - Withdrawal 10.1. Withdrawal from participation in a joint enterprise 10.2. Withdrawal from assistance and encouragement 11. The notions of perpetration and participation in EU Law 11.1. Introduction 11.2. The notions of agreement and concerted practices 11.3. The objective requirement 11.4. The subjective requirement 11.5. The model of participation in competition law 11.6. Evaluation 12. Preliminary conclusion 13. Towards a European concept of participation 13.1. Introduction 13.2. A normative concept of participation in crime 13.3. Trivial assistance Chapter IV. Inchoate offences: Attempt and preparation 1. Introduction 2. Two patterns of criminality 2.1. The pattern of manifest criminality a.k.a. the harm-centred view 2.2. The pattern of subjective criminality a.k.a. the culpabilitycentred view 2.3. The communalities of the two patterns. 3. The Objective - Subjective Debate. 4. The pattern of criminality in the culture of control 5. Attempt versus preparation 6. Preparation 6.1. Introduction 6.2. Offences criminalising preparatory conduct 6.2.1. Introduction 6.2.2. Specific offences: Possession and endangerment 6.3. Preparation as a doctrine of the general part 6.3.1. Introduction 6.3.2. The Dutch doctrine of preparation 6.4. Evaluation 7. Criminal attempts 7.1. Introduction 7.2. The rationale for punishing attempts 7.2.1. Introduction 7.2.2. Objective rationales 7.2.3. Subjective rationales. 7.2.4. Mixed rationales 7.3. Analysing the legislative starting point of attempt liability 7.3.1. Introduction 7.3.2. Germany 7.3.3. The Netherlands 7.3.4. England 7.4. The actus reus of criminal attempts 7.4.1. Introduction 7.4.2. Drawing the line between attempt and preparation 7.4.3. Concluding remarks 7.5. The fault element in attempts 7.5.1. Introduction 7.5.2. The fault element in England/Wales 7.5.3. The fault element in the Netherlands 7.5.4. The fault element in Germany 7.5.5. Conclusion 8. Impossible attempts. 8.1. Introduction 8.2. The objective approach: Impossibility in the Netherlands 8.3. The Subjective approach: Impossibility in England and Wales 8.4. The mixed approach: Impossibility in Germany 8.5. Concluding remarks 9. Voluntary Withdrawal 9.1. Introduction 9.2. Rationales for accepting voluntary withdrawal 9.3. The nature of the exception 9.4. The constituent elements of withdrawal 9.4.1. Categories of attempts 9.4.2. Voluntariness 9.4.3. The actus contrarius in complete attempts 9.5. Voluntary withdrawal from preparation? 10. Inchoate offences in the European Union 11. Conclusion 11.1. Preparation 11.2. Criminal attempts Chapter V. Criminal liability of legal entities 1. Introduction 2. Alternative and complementary methods to tackle corporate wrongdoing 2.1. Introduction 2.2. Regulatory offences. 2.3. Strict liability offences 2.4. Personal liability of corporate directors 3. Models of Corporate criminal liability 3.1. Introduction 3.2. Objective models of liability: Vicarious liability and the benefit theory 3.3. Theidentification doctrine in English law 3.3.1. The application of the identification doctrine 3.3.2. Acting within the scope of corporate duty 3.3.3. The Meridian Case: Towards a more flexible approach of identification? 3.3.4. The impact of the Corporate Manslaughter and Corporate Homicide Act 2007 3.4. The identification doctrine in the German Administrative Offences Act 3.5. The identification doctrine in European Union Law. 3.6. The attribution of fault 3.7. The pitfalls of the identification doctrine 3.8. Alternative models of liability 3.8.1. The Drijfmest (slurry) judgment 3.8.2. Jurisprudence after the Drijfmest (slurry) judgment 3.8.3. The Corporate Manslaughter and Corporate Homicide Act 2007 4. Corporate culture and ethos 4.1. Introduction 4.2. Organisational fault 5. Conclusion 5.1. Introduction 5.2. Corporate liability Chapter VI. Conclusion - Towards a general part of European Criminal Law 1. Introduction 1.1. The increasing normativity of criminal liability 1.2. The limits of criminal liability 2. A European concept of actus reus 2.1. The conduct requirement 2.2. Omission liability 2.3. Causality 3. Multiple actor scenarios 4. Inchoate offences. 5. Corporate criminal liability 6. Concluding remarks Selected Bibliography. Summary Samenvatting Curriculum Vitae Johannes Keiler
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