Tutorial 3

Questions

1. What is the relationship between the objective and the subjective elements of an offence?
They are two main elements of a criminal offence, which generally have to be both
fulfilled (expect in case of strict liability crimes, in which fault does not need to be
proven).

2. What is the rationale for the requirement of a subjective element?

In order to trigger criminal liability, someone needs to act before being punished, and an
actor can only be convicted for conduct or consequences that he brought about
intentionally or negligently.
The rationale of mens rea is also based on the fulfillment of retributive and preventive
goals:
 Retributive: grounded on the fact that the defendant chose to commit the actus
reus of the offence, to warrant punishment, and to guarantee that only guilty
people are punished.
 Preventive: no one is deterred if punishment is a matter of luck.

3. What are the different kinds of mens rea?

Civil law systems Common law systems

Dolus directus (direct intent): Dolus directus (direct intent):
- The actor’s purpose is the completion - The actor’s purpose is the completion
of the offence of the offence.
- The consequences are perfectly known - The consequences are perfectly known

Dolus indirectus (indirect intent): Dolus indirectus (indirect intent):

- The actor knows that his conduct will - The actor knows that his conduct will
almost certainly bring about almost certainly bring about
consequences, but he does not consequences, but he does not
primarily aim at them primarily aim at them

Dolus eventualis (conditional intent): Recklessness

- Two elements: awareness of the - It covers both dolus eventualis and
materialization of the risk + conscious negligence of civil law
acceptance of the risk (act committed systems
nonetheless) - One element: awareness of an
- DE: awareness concerns any risks unreasonable risk (acceptance of the
- NL: awareness concerns only risk is not necessary)
considerable risks - Un-reasonability: objectively assessed
+ likelihood and social utility

Conscious negligence Recklessness

- The actor is aware of the risk, but he - It covers both dolus eventualis and
 believes it will not occur conscious negligence of civil law
- Trust in a good outcome systems
- Different from dolus eventualis: - One element: awareness of an
actor’s attitude (in dolus eventalis, unreasonable risk (acceptance of the
actor accepts the risk) risk is not necessary)
- Un-reasonability: objectively assessed
+ likelihood and social utility

Unconscious negligence Negligence

- No awareness of the risk
- The actor should and could have been
aware of the risk of his conduct
Limitations:
- The defendant can argue the absence
of fault: it must be proven that he did
everything he could
- Only gross carelessness is punishable, - The defendant can argue the absence
not light negligence
- No distinction between conscious and
unconscious negligence (due to
concept of recklessness)
- No awareness of the risk
- The actor should and could have been
aware of the risk of his conduct
Limitations:
of fault: it must be proven that he did
everything he could
- Only gross carelessness is punishable,
not light negligence

4. What are the main differences between intent and negligence?

The awareness of the risk and the actor’s attitude towards it.

5. What is the test for the common law concept of recklessness?

Subjective test. The case law that defines the Common law concept of recklessness is R v
G and another:
A person acts recklessly with respect to:
a. A circumstance, when he is aware of a risk that exists or will exist.
b. A result, when he is aware of a risk that will occur.
Recklessness requires the awareness of the risk: the conscious taking of an unreasonable
risk (the negligent actor is unaware of the risk, although he should and could have
known).

6. What is the main difference between dolus directus, indirectus, and eventualis?
According to dolus directus, the completion of the offence is the purpose, while it
represents only a risk for indirect and conditional intent.
For dolus indirectus, the risk has to be almost certain, while for dolus eventualis differs
from jurisdictions (DE: any risks, NL: considerable risks).

7. What are the different forms of negligence?

 In Civil law systems, negligence is divided between conscious and unconscious
negligence.
Conscious negligence: the actor is aware of the risk, but he believes it will not occur. He
trusts in a good outcome.
Unconscious negligence: there is no awareness of the risk, but the actor should and could
have been aware of the risk of his conduct. It has two limitations: the chance of the
defendant to argue that he did everything he could, hence negating fault, and the
negligence/carelessness has to be gross.
In Common law systems, there is only one concept of negligence, due to the existence of
recklessness. It is very similar to the Civil law concept of unconscious negligence.

Case study 1: How a butcher may lose his customers

1. Scenario 0: killing by selling poisoned meat.

His primary aim is to kill her through poised meat (volitional part) + he is aware of the
consequences (cognitive part).
 NL: Art. 289 DCC – murder
Condition 1 – intention: fulfilled, direct intent.
Condition 2 – premeditation: fulfilled, he planned it.
 DE: §211 – murder
Condition – killing out of base motives: fulfilled, by stealth.

2. Scenario a: her sister is killed.

 Civil law systems: conditional intent (dolus eventualis); he was aware of the risk
that Ms. Slocomb could give that meat to someone else, but he accepted it and
sold the meat nonetheless.
 Common law systems: recklessness; he was aware of the unreasonable risk.

3. Scenario b: freezer broken, butcher believes there is no risk, customer dies.

 EN: recklessness  conscious taking of an unreasonable risk.
 NL: conscious negligence  awareness of the risk + trust in good outcome (Art.
307 DCC: negligent manslaughter).
 DE: conscious negligent  awareness of the risk + trust in good outcome (§222
GCC: negligent manslaughter).

4. Scenario c: freezer broken, considerable chance of disease known.

 EN: recklessness  conscious taking of an unreasonable risk.
 NL: dolus eventualis  he is aware of the risk (i.e. the considerable chance that
his meat is diseased and that could cause his clients’ deaths), but he accepted and
decided to sell the meat anyway (Art. 287 DCC: manslaughter).
  DE: dolus eventualis  he is aware of the risk (i.e. the considerable chance that
his meat is diseased and that could cause his clients’ deaths), but he accepted and
decided to sell the meat anyway (§212 GCC: manslaughter).

5. Scenario d: freezer and meat constantly checked.

 No criminal liability
 There is no unconscious negligence, since the butcher did everything that could
reasonably expected from him.

6. Scenario e: he forgets to check his freezer due to stress.

 EN: unconscious negligence.
 NL: unconscious negligence. He should and could have been aware of the risk
concerning his diseased meat. The risk was unreasonable, and he degree of
carelessness was gross, since he forgot to check the freezer (Art. 307 DCC:
negligent manslaughter).
 DE: unconscious negligence. He should and could have been aware of the risk
concerning his diseased meat. The risk was unreasonable, and he degree of
carelessness was gross, since he forgot to check the freezer (§222 GCC: negligent
manslaughter).

Case study 2: Crime is a risky business

(Focus on DE)

Tripartite structure
1. Actus reus: manslaughter (§212 (1)) + mens rea: dolus indirectus (the death of the two
homeless is not primarily aimed, since his initial goal was to recover the insurance
money due to financial problems).
2. Wrongdoing: fulfilled, no justifications.
3. Blameworthiness: fulfilled, no excuses.

 he should be convicted for manslaughter with dolus indirectus.

Case study 3: Crime is a risky business – the sequel

(Focus on DE)

Tripartite structure
1. Actus reus: manslaughter (§221 (2)) + mens rea: dolus eventualis (he was aware of the
risk, namely that those two homeless could have been there, but he accepted it and burnt
down his cottage anyway).
2. Wrongdoing: fulfilled, no justifications.
 3. Blameworthiness: fulfilled, no excuses.

 he should be convicted for manslaughter wuth dolus eventualis.

Case study 4: Presentation

Questions

1. For which kind of offence(s) can one be prosecuted if one transmits HIV?
 EN: criminal liability for recklessly transmitting HIV, also with a small chance of
infection. The arm in very serious and the risk is unreasonable. Furthermore,
having unprotected sexual intercourse is no social utility.
 Kozani case
 DE: criminal liability for inflicting serious bodily injury (or attempting to do so if
no infection is followed) with dolus eventualis  §223 GCC
 NL: criminal liability for inflicting bodily injury (or attempting to do so if no
infection is followed) with dolus eventualis  Art. 302 DCC

2. How would you summarize the view of the Dutch Supreme Court with regard to criminal
liability for the transmission of HIV when having unprotected sex?
HIV cases fall under dolus eventualis, for which – according to Dutch law – the risk must
be considerable, which regarding HIV cases, it means that it is brought only under
‘certain risk-increasing circumstances’. The Dutch Supreme Court seems reluctant to
recognize these special circumstances, and no HIV-positive person has ever been
convicted.

3. What s ‘conditional intent’ according to Dutch Supreme Court? And how is different
from German jurisprudence?
According to Dutch law, the risk must be considerable, while for German law the actor
has to be aware of any risks.

4. Do you see some differences between the Netherlands and England and Wales with
regard to the criminalization of HIV-transmission?
 NL: HIV cases fall under dolus eventualis, and the risk must be considerable,
which is only present under certain ‘risk-increasing circumstances’. The Dutch
legal system hardly recognize these specific circumstances within HIV cases, and
no HIV- positive person has ever been convicted for inflicting bodily injury.
 EN: HIV cases fall under recklessness, which requires only the awareness of the
risk. Even with a small chance of infection, the defendant should be convicted for
recklessly transmitting HIV.