Forms and Aspects of Mens Rea PDF

CHAPTER VII FOR MS AND ASPECTS OF MENS REA Jeroen Blomsma and David Roef 1. INTRODUCTION Actus non facit reum nisi mens sit rea, as the Latin maxim goes, is often expressed to indicate that a crime can only be committed if the two basic set of elements are fulfil...

CHAPTER VII FOR MS AND ASPECTS OF MENS REA Jeroen Blomsma and David Roef 1. INTRODUCTION Actus non facit reum nisi mens sit rea, as the Latin maxim goes, is often expressed to indicate that a crime can only be committed if the two basic set of elements are fulfilled. As already discussed in Chapter IV, the first set of elements is called actus reus. This consists of the objective elements of a crime, like conduct, consequences or circumstances. The second set of elements is called mens rea or the subjective or fault elements of every crime. These elements include intention and negligence. To illustrate this, consider the offence of manslaughter in Article 287 DCC: ‘a person who intentionally takes the life of another is guilty of manslaughter.’ The taking of life is the actus reus of the crime, and the required intention as to that conduct is the mens rea. The Latin maxim makes clear that as a rule, criminal liability cannot be imposed for merely thinking of doing something criminal. Someone needs to act before we can punish him. The mere circumstance that you thought about killing your professor does not make you criminal. Only when you have started to take action in order to execute this idea may criminal liability arise.1 Secondly, a person can only be convicted for conduct or consequences that he brought about intentionally or at least negligently. A degree of mens rea must have been present in order to trigger criminal liability. For example, you cannot be held criminally liable if you neither knew, nor should have known, that by opening the door you would injure the person standing behind it. Nonetheless, the reality in many legal systems is that these rules are not applied in a rigid manner. As soon as you talk about killing your professor with another student, you may be liable in some systems for conspiring to kill him. As far as the requirement of an actus reus is concerned, offences of conspiracy are therefore problematic. The rule that mens rea is an essential element of every offence seems to be applied with even less consistency. For instance, many legal 1 See: Chapter IX. Intersentia 177  Jeroen Blomsma and David Roef systems punish without requiring proof that the accused was at least negligent. For instance, in England and the Netherlands, you may be punished for having sexual relations with a minor, regardless of whether you knew or should have known that that person was indeed a minor.2 In most EU states, you may also be fined for speeding, regardless of whether you knew or should have known that you drove too fast. The self-evident nature of such crimes, also called strict liability offences, begs the question why we require mens rea in the first place. From a historical perspective, requiring mens rea for criminal liability can be explained as a counter-reaction to liability that is merely based on harmful outcomes. It is a principle that protects persons who cannot be reproached for the criminal act they committed. The Latin maxim is translated as ‘an act does not make a man guilty unless his mind is (also) guilty.’3 In other words, the criminal wrong of an offence consists not only of the act or consequence, but also by the concomitant state of mind. People are recognised as autonomous, sensible persons, who can be held accountable for the choices they make. Proof of mens rea denotes a sufficient degree of control and choice over actions. By requiring mens rea, it is safeguarded that the defendant is only held liable if he had the capacity and opportunity to do otherwise. From the perspectives of retribution and deterrence, the subjective connection between act and actor is also important. Punishment that is merely based on unfortunate outcomes is neither deserved nor useful. Retribution is grounded in the fact that the defendant chose to commit the actus reus of the offence. This reflects his hostility or indifference towards the legal interest of the victim, which warrants punishment. The opposite is also true, as it would be unfair to punish the defendant who cannot be reproached for what he did. Moreover, it would have little use. Neither this defendant, nor other persons are deterred from committing similar acts if it is a matter of luck. Without mens rea, without any degree of control, the legal subject is not influenced by the law to adapt his behaviour. In other words, both retributive and preventive goals of punishment can only be fulfilled if criminal liability and punishment follow upon establishing mens rea. 2. DIFFER ENT FAULT ELEMENTS COMPAR ED Often, the term mens rea is used to refer to the different fault elements of a crime such as intention and negligence. The law distinguishes between these elements 2 Article 245 DCC and section 5 of the English Sexual Offences Act 2003. In contrast, intent must relate to the age of the victim in §176 GCC. 3 A.P. Simester, J. Spencer, G.R. Sullivan and G. Virgo, ‘Simester and Sullivan’s Criminal Law – Theory and Doctrine’ (Hart Publishing 2013), p. 9; C.J.M. Safferling, ‘Vorsatz und Schuld: Subjektive Täterelemente im deutschen und englishen Strafrecht’ (Mohr Siebeck 2008), p. 292. 178 Intersentia  Chapter VII. Forms and Aspects of Mens Rea in order to distinguish relative degrees of culpability. All other things being equal, the intentional actor is more culpable than the negligent actor, because the former wanted to bring about the actus reus. Accordingly, people can be punished much more severely for intentional crimes than for negligent crimes. Secondly, the distinction in fault elements enables the limitation of criminal liability; some crimes can only be committed intentionally. For example, damaging goods is only punishable when the person intended to cause damage. Negligent damage can only be compensated under civil law. The rationale for this limitation is also based on the difference in culpability. The person who broke something but did not do this on purpose should not be punished. The first problem that will be discussed here concerns the demarcation of these fault elements. It is clear that acting in order to bring something about constitutes the essence of intentional conduct, but what about other mental states such as acting whilst foreseeing a risk? What if you played football on the street, knowing there was a risk you might kick the ball against a window and break it? Can you be said to have intended this damage, if it in fact occurs? In many legal systems, this question is answered in the affirmative, equating risk- taking with a form of intention, whereas other legal systems, such as the English, adhere to a much more restricted concept of intention. Simply put, the difference between these approaches follows from different frameworks of mens rea. In Dutch and German law, only two major kinds of mens rea are distinguished: intention and negligence. The English framework is more fine-grained and includes a third subjective element in between intention and negligence, which is called recklessness. Recklessness bridges the gap between the most serious and the lowest limit of mens rea. As we will see, because of this middle ground, there is no need in English law to stretch the concept of intention to cases that would otherwise ‘only’ be deemed negligent. 2.1. DIR ECT INTENT OR DOLUS DIR ECTUS Intention (dolus in Latin) is considered the most serious fault element in all legal systems. Intention consists of knowing and wanting. Accordingly, the elements of intention can be distinguished as being a cognitive part, on the one hand, and a volitional part, on the other. In civil law systems, which only distinguish between intention and negligence, intention is interpreted in a quite broad manner. The most serious form of intention is called direct intent or dolus directus. A slightly less serious form is indirect intent or dolus indirectus.4 The lowest form is referred to as conditional intent or dolus eventualis. 4 In Germany and international criminal law this dichotomy is usually expressed as ‘first’ and ‘second degree direct intention’, or dolus directus in a first and a second degree. Intersentia 179  Jeroen Blomsma and David Roef Direct intent is what we would generally consider to be intentional conduct in an everyday sense, focusing on the will or desire of the actor to bring about a certain result. Dolus directus is intention in its purest legal and linguistic sense. It is ‘acting in order’ or ‘deciding or seeking to bring about’.5 The volitional component is dominant in direct intent. It is therefore not required that the actor was aware of the certainty or high likelihood of occurrence of the consequence. What is important is that he has the completion of the offence (element) as his purpose.6 It is ‘the will to realise’ that makes the intent direct, not the chance of a consequence occurring, as the result is what matters to the actor.7 A simple example may illustrate this: a man who desires to kill his adulterous wife with a firearm, and subsequently shoots her from a short distance in the chest, clearly intended to kill the victim. Even if the defendant remains silent, his intention can be deduced from the objective conduct in these circumstances. Now, the actor’s intent will not be less ‘direct’ if he shoots at her from a great distance, knowing that he is a poor shot, and subsequently misses her. In such a case, he will still be liable for an attempt to kill her with dolus directus. A weak cognitive aspect, foreseeing only a small chance that he will succeed, is compensated for by a strong volitional aspect of desiring the result. Direct intent reflects the highest degree of intent, because behaviour carried out willingly is considered to reflect the highest possible degree of control and choice. A person who shoots another with a firearm in order to kill has great control over the events and the outcome. Clearly, the shot might not be lethal, or the firearm might be jammed, but it is the actor who has most influence on the conduct and outcome, which warrants the highest reproach. 2.2. INDIR ECT INTENT OR DOLUS INDIR ECTUS Indirect intent exists when the actor knows his conduct will almost certainly bring about consequences that he does not desire or primarily aim at. It deals with side effects that the actor knows are almost certain to occur.8 For example, the perpetrator plants a bomb on an aeroplane in order to blow it up, after which he can collect the insurance money. His purpose is not to kill the passengers of the plane. However, he knows that in order to reach his goal of collecting 5 A.P. Simester, J. Spencer, G.R. Sullivan and G. Virgo, ‘Simester and Sullivan’s Criminal Law – Theory and Doctrine’ (Hart Publishing 2013), pp. 127–129. 6 M. Bohlander, ‘Principles of German Criminal Law’ (Hart Publishing 2009), p. 63; T. Fisher (ed.), ‘Strafgesetzbuch und Nebengesetze’ (C.H. Beck 2009), p. 105; J. Wessels, W. Beulke and H. Satzger, ‘Strafrecht Allgemeiner Teil, Die Straftat und ihr Aufbau’ (C.F. Müller Verlag 2014), pp. 94–95 7 C. Roxin, ‘Strafrecht Allgemeiner Teil – Band I Grundlagen – Der Aufbau der Verbrechenslehre’ (C.H. Beck Verlag 2006), pp. 438–439. 8 To be precise, in England, indirect intent is not considered a second form of intent, but merely evidence from which intention may be inferred, see: R v Woollin UKHL 28. 180 Intersentia  Chapter VII. Forms and Aspects of Mens Rea the insurance money, the death of those people is almost certain. If the plane explodes and crashes, people will almost certainly die. The cognitive element, knowledge of certainty or high degree of probability, is more dominant than any volitional requirement. Thus, the result known or believed to be a condition of the achievement of the purpose is considered to be intended, even when it is not desired. However, mere foresight is insufficient for indirect intent, and brings us in the realm of dolus eventualis and the English concept of recklessness. This form of dolus is called indirectus because the state of mind of the actor is not aimed directly at the result of the offence definition of the crime – in our example, the killing of the passengers and crew – but at another, further goal that does not form part of the offence definition, such as the destruction of the aeroplane and insurance fraud. This implies that the death of the victims is an indirect goal of the actual purpose. In comparison with this indirect form of intention, dolus directus is aimed directly at the result expressed in the offence definition. The distinction between the two types of intention can be made by the so-called test of failure.9 If the passengers miraculously survive, the actor would not consider his plans to blow up the plane and collect the insurance money to have failed. He had dolus directus as to the explosion and the insurance fraud, and indirectus as to the death of the passengers. By contrast, if the wife of the pilot intended to kill him, because he is cheating on her, or for any other reason, she would consider her plans to have failed if he survived. She clearly had dolus directus as to his death. Another way of framing this is to distinguish necessary means on the one hand from side-effects that are almost certain to accompany the achievement of the purpose on the other. Goals that are not primarily desired but are understood as necessary means to the end goal fall under dolus directus as well. If the perpetrator wanted to collect the insurance for the aeroplane, the pilot’s death is not a necessary means for his purpose, hence his death was indirectly intended. However, in the case of the wife who had dolus directus as to the death of her husband, the blowing up of the aeroplane is no longer just a side-effect, but a necessary means or interim goal and thereby also a consequence that was directly intended. Without the plane exploding, the wife could not realise her goal, i.e. the death of her husband. Regarding the explosion she therefore also had dolus directus. These examples illustrate that both intentional actors are just as culpable. Both types of intent show that the defendant accepted the outcome, reflecting his bad character, showing that he was insufficiently motivated by the interests of his fellow citizens, and therefore deserves and needs to be punished.10 The great 9 R.A. Duff, ‘Intention, Agency and Criminal Liability: Philosophy of Action and the Criminal Law’ (Basil Blackwell Ltd 1990). 10 I. Kugler, ‘Direct and Oblique Intention in the Criminal Law’ (Ashgate 2002), pp. 77–80. Intersentia 181  Jeroen Blomsma and David Roef degree of knowledge, the awareness of the certainty that the result will follow, also makes the rationale of control and that of choice apply to dolus indirectus. Because the actor is aware of the certain consequences of his actions, he can be considered to still be in control of the events.11 It is this similarity that enables dolus indirectus to be put on the same footing as dolus directus.12 Experience has taught us that unwanted side-effects can be even more harmful than intended goals.13 In some cases, the ‘advertent taking of an obvious and overwhelming risk of a certain result’ can be ‘considered to be just as deplorable as if it had been his or her primary purpose to bring about the result’.14 Consequently, only in relation to some offence elements, direct intent and nothing less suffices. We may refer here to the specific intent requirement in terrorist offences to destabilise and frighten society, or in genocide, in which crime the actor aims to destroy, in whole or in part, a national, ethnic, racial or religious group. The defendant can only be held liable if he acted in order to bring about that specific purpose. 2.3. CONDITIONAL INTENT OR DOLUS EVENTUALIS As a third type of intent, Germany and the Netherlands distinguish conditional intent or dolus eventualis. This fault element equates foreseen side-effects with intended results. It requires that the defendant was aware of the possible side- effects of his actions and he decided to act nonetheless, accepting these side- effects. The culpability of the defendant is therefore grounded in his conscious risk-taking, which warrants his status as an intentional actor. 2.3.1. Meaning and rationale The term ‘conditional intent’ may be somewhat confusing, as it is not the intent which is conditional, but the occurrence of the result, i.e. the harmful consequence is dependent (conditional) on uncertain circumstances. In order to have a completed offence, the possible risk that the perpetrator consciously accepted must occur. But if the risk does not materialise, there is still conditional intent, which can ground attempt liability. Thus, the intent itself is unconditional, independent of a further condition like realisation of the risk. Consider someone who throws another person in a cold river with a strong current, realising the 11 G.P. Fletcher, ‘The Grammar of Criminal Law – American, Comparative and International – Volume One: Foundations’ (Oxford University Press 2007), p. 315. 12 A. Schönke and H. Schröder, ‘Strafgesetzbuch Kommentar’ (C.H. Beck Verlag 2014), §15 Mn 68–70. 13 C. Prittwitz, ‘Strafrecht und Risiko – Untersuchungen zur Krise von Strafrecht und Kriminalpolitik in der Risikogesellschaft’ (Vittorio Klostermann 1993), p. 369. 14 M. Bohlander, ‘Principles of German Criminal Law’ (Hart Publishing 2009), p. 62. 182 Intersentia  Chapter VII. Forms and Aspects of Mens Rea lethal danger beforehand but continuing anyway. The intent to kill is already present when the victim is pushed off the bridge, regardless of whether the victim dies or survives. Knowing the risk that the harmful consequence may occur, the perpetrator takes this risk into the bargain and acts anyway. The main rationale of dolus eventualis is that it enables an extended interpretation of intent, just like dolus indirectus, in order to hold that results have been intended even though they were not wanted. As mentioned, if it cannot be proven that the accused either wanted to fulfil an offence element or knew this was almost certain, there can be no liability for dolus directus or indirectus. Consequently, without the extended form of dolus, the accused could not be convicted for an intentional offence. In civil law systems that operate with only two kinds of fault – intention and negligence – this implies that only negligence liability remains possible. However, a conviction for a negligent rather than an intentional offence not only brings about a lower sentencing range; it also labels the actor’s conduct as less reprehensible in comparison with the same result brought about intentionally. If intention did not apply to foreseen side-effects, the actor may be punished and stigmatised less severely than he deserves.15 2.3.2. Awareness of a risk Like the other forms of intent, dolus eventualis consists of a cognitive and a volitional element, albeit in a diluted form when compared with (in)direct intent. The cognitive element is the awareness of a risk and the volitional element is taking the risk for granted. Although the concept is almost identical in Dutch and German law, the interpretation of the first criterion of being aware of a risk differs. Whereas in German law, the defendant only needs to be aware of a(ny) possible chance that the risk may materialise, the degree of this risk must be considerable in Dutch law. Chances that are empirically not likely to occur are not relevant for dolus eventualis. The relevance of this difference can be illustrated in the highly debated context of having unprotected sexual intercourse. These so-called HIV cases have resulted in defendants being charged with the intentional infliction of serious bodily injury,16 and judgments on just how likely the consequence of infection must be in order to accept conditional intent. The conclusion that can be drawn from Dutch case law is that unprotected sexual intercourse only brings about a considerable chance under ‘certain risk-increasing circumstances’.17 The Dutch Supreme 15 S.I. Politof and F.A.J. Koopmans, ‘Schuld’ (Gouda Quint 1991), p. 135. 16 The charge of (attempted) intentional killing is not deemed appropriate to these cases. In the Netherlands, this is accepted as evident, but in Germany, the question whether HIV infection constitutes killing or inflicting bodily injury has been fiercely debated. See e.g.: C. Roxin, ‘Strafrecht Allgemeiner Teil – Band I Grundlagen – Der Aufbau der Verbrechenslehre’ (C.H. Beck Verlag 2006), pp. 476–477. 17 HR 18 January 2005, NJ 2005, 154. Intersentia 183  Jeroen Blomsma and David Roef Court seems, however, quite reluctant to recognise these specific circumstances. As a result, no HIV-positive person has ever been convicted for inflicting (or attempting to inflict) bodily injury (Article 302 DCC) via unprotected sexual intercourse. A pertinent example can be found in the following decision where the Dutch Supreme Court quashed a conviction of a man who infected his partner by having unprotected sex while knowing he was HIV positive. Dutch Supreme Court, 20 February 2007, NJ 2007, 313 ‘3.2. The conviction is based on the following evidence: […] b. an official report of the magistrate, containing the statement of [victim]: “From April to September 1997 I have not had sex with another man than with [defendant]. In the beginning of our relationship [defendant] and I have had protected anal intercourse, but we have resorted to unprotected contact. I think about two to two and a half months after the beginning of the relationship. The initiative came from [defendant]. He told me that he was HIV negative, and that he has repeated on several occasions, even in the presence of friends and my parents. I told him that I was HIV negative too, and since then we have not used condoms together.” […] i. a copy of the judgment of the Supreme Court of 18 January 2005, No 02659/03, insofar as it contains the statement made on 16 January 2003 by Prof. S.A. Danner: “In genital-anal contact the chance of infection (with the HIV virus; court) is greater than in genital-vaginal contact. The anus is not built for sexual intercourse, so that genital-anal intercourse is more likely to result in micro-traumatica (sores) that bleed. Blood contains a large amount of HIV particles. This makes the risk of infection in genital-anal contacts bigger. The risk of infection is 1 in 200 to 300 per sexual act. The risk of infection is one and a half to two times greater in case the person infected with HIV is penetrating the other anally, than vice versa. In the medical world, the risk of infection of 1 in 200–300 is considered high.” […] 4.3. It is true that the evidence suggests that by acting as he did, the accused brought about the danger that the victim would be infected with the HIV virus, which risk has also materialised, but it cannot be inferred from the evidence or the considerations of the Court of Appeal that there was such a considerable risk of contamination that dolus eventualis in a case such as this may be accepted. 4.4. In the consideration above, the Court of Appeal was first of all wrong to take into account the circumstance that the suspect knowingly lied to his partner. This may be important for answering the question whether the defendant consciously accepted the risk that he would infect his partner with the HIV virus, but not for determining the size of that risk. The Court has also made use of statistical data on the probability of realisation of this risk, which are considered significant in the medical world. However, given the reluctance that – also from the point of view of the ministers [of Health and Justice] concerned […] – in connection with public health interests […] should be exercised in accepting criminal liability for endangering conduct such as in this case, that data has 184 Intersentia  Chapter VII. Forms and Aspects of Mens Rea insufficient weight to establish on that basis that the risk is considerable in cases like the present as required for dolus eventualis. The circumstance that the defendant and his partner have had frequent sexual contacts, as the Court has held, may be regarded as increasing the aforementioned risks, but cannot be regarded as a special risk-increasing circumstance […].’ In sharp contrast, in Germany, a person who knows he or she is HIV positive and does not use a condom when having sex is said to have consciously taken for granted the risk that his or her partner would be infected. As a result, that person can be convicted for inflicting serious bodily injury (§223 GCC), or attempting to do so, if no infection followed. In a case before the Supreme Court of 4 November 1988, the defendant, who knew he was HIV positive, did not comply with the repeated advice of his doctor and psychiatrist to use condoms and had unprotected sexual intercourse on at least two different occasions with a man. The defendant submitted he had not used a condom when he was receiving oral sex, but that he did in fact use a condom when he anally penetrated the victim until he ejaculated. On a subsequent occasion, he tried to have unprotected anal intercourse, but stopped because this hurt, and then continued whilst using a condom received from the victim. The Supreme Court approved of the conviction of the District Court for intentional infliction of serious bodily harm. It held that the Court was correct to hold that any of the acts was capable of infecting the victim. Even if the virus was particularly strong in blood and semen, and the risk of infection bigger with anal intercourse, the virus could also be transmitted by one-off oral sexual intercourse. German Supreme Court, 4 November 1988, BGHSt 36, 1 ‘Even though there is still no scientific clarity about the precise physiological mechanisms for the transmission of HIV or about the statistical probability of becoming infected as a consequence of one-off unprotected sexual intercourse with an infected partner or the extent to which this is reduced if there is no ejaculation. But it is assured that any unprotected – oral, anal or vaginal – sexual intercourse is capable of infecting the partner. […] Oral intercourse is less, anal intercourse especially dangerous. Termination prior to ejaculation reduces the risk but does not eliminate it.’ In the context of HIV infection, this means that a small chance of infection is still unreasonable to take, given the great harm that may result from infection and the easy way to almost neutralise this risk by using a condom. Other convictions have followed since then, including the quite recent conviction in 2010 of former No Angels singer Nadja Benaissa, who received a two-year suspended sentence for having unprotected sexual intercourse whilst knowing she is HIV positive.18 18 Süddeutsche Zeitung, 17 August 2010. Intersentia 185  Jeroen Blomsma and David Roef The above demonstrates that the threshold of the risk in conditional intent is indeed much lower in Germany than in the Netherlands. However, we need to be careful when inferring general conclusions from the context of HIV, as criminal policy reasoning may always play an important role in determining conditional intent. For example, it is very interesting that in the above-mentioned Dutch case there is an express consideration in the judgment on the political reluctance to criminalise the (possibility of) HIV infection. This may suggest that the Supreme Court did not want to establish liability in these HIV cases. In other words, although these cases clearly illustrate the difference in the two versions of conditional intent, one should keep in mind that the outcome of these decisions are very much related to the specific context of HIV and unprotected sex. It should therefore not be concluded that the lower threshold on the risk automatically leads to a finding of conditional intent in more cases in Germany. In fact, rather the opposite seems to be the case. Amongst others, this is because of the relationship between the degree of risk and the acceptance, the second criterion of dolus eventualis. The low probability is often seen by German courts as an evidential indication that the actor did not accept the consequences occurring. The less likely a result was to occur, the more likely a court will therefore decide that the defendant did not accept this possibility.19 This can be illustrated in cases where a driver of a vehicle is ordered to stop by a police officer, but he refuses and continues to drive, whereby the officer has to jump aside to escape collision with the vehicle. German courts have argued that the defendants bank on the reaction of the policeman. They accept endangering them, but they do not actually contemplate that they will be killed. The defendants are thought to have considered the chance of death as improbable, as the defendant trusts the officer expects such actions and is mentally prepared to jump, which is confirmed by the fact that these situations hardly ever lead to fatal results. There is therefore no acceptance of death and no liability based on conditional intent.20 In short, the awareness of only a small chance suggests the accused did not accept the death of the officer. 2.3.3. Acceptance of the risk Next to awareness of the risk, dolus eventualis requires that the defendant accepted the possibility that the risk may occur. This volitional element 19 T. Fisher (ed.), ‘Strafgesetzbuch und Nebengesetze’ (C.H. Beck Verlag 2009), p. 107; A. Schönke and H. Schröder, ‘Strafgesetzbuch Kommentar’ (C.H. Beck Verlag 2014), §15 Rn. 85–87b. 20 M. Bohlander, ‘Principles of German Criminal law’ (Hart Publishing 2009), pp. 65–66; C. Roxin, ‘Strafrecht Allgemeiner Teil – Band I Grundlagen – Der Aufbau der Verbrechenslehre’ (C.H. Beck Verlag 2006), pp. 467 and 471; A. Schönke and H. Schröder, ‘Strafgesetzbuch Kommentar’(C.H. Beck Verlag 2014), §15 Rn. 85–87b. For example, 21 November 1995 BGH NStZ-RR 1996, 97. It should be noted that these drivers could be held liable for violating §§315b or 315c GCC, which is punishable by up to ten years of imprisonment. 186 Intersentia  Chapter VII. Forms and Aspects of Mens Rea distinguishes dolus from culpa or negligence. It is therefore negated when the actor sincerely believed the risk would not materialise, in which case only conscious negligence exists.21 The exact extent to which the defendant must have accepted the risk is expressed in numerous ways. The German courts use often the following terms: ‘approve’,22 ‘accept the result and approve it’, 23 ‘taking into the bargain’ and ‘acquiescence’.24 In the Netherlands, the courts often use the wordings ‘(conscious) acceptance’25 or ‘taking the consequences into the bargain’.26 All these different terms give the same basic message: the actor must either endorse the result or at least come to terms with it for the sake of the desired goal.27 A German case that illustrates the acceptance criterion very well is the so-called Leather Belt case.28 Two persons intended to steal the victim’s money and in order to avoid his resistance they tried to drug him first. However, this method did not work. Hence they decided to strangle him with a leather belt, until he could not move anymore, in order to prevent him fighting back. While doing so, they realised that the victim could be strangled to death. This insight appeared unpleasant to them; however, they wanted to ‘put him out of action’ at all costs.29 The German Supreme Court affirmed their conditional intent to kill and ruled that dolus eventualis requires that the offender ‘foresees’ the consequences ‘as possible’ (für möglich halten) and ‘approves them’ (billigen).30 The Supreme Court decided that both perpetrators accepted the fact that the victim could die while strangling him and therefore approved this result. It may sometimes be difficult to prove the volitional element because it concerns an inner disposition of the actor, which is mostly hidden from us. In order to avoid dealing with such complicated psychological processes, courts 21 C. Roxin, ‘Strafrecht Allgemeiner Teil – Band I Grundlagen – Der Aufbau der Verbrechenslehre’ (C.H. Beck Verlag 2006), pp. 457–459; A. Schönke and H. Schröder, ‘Strafgesetzbuch Kommentar’ (C.H. Beck Verlag 2014), §15 Rn. 85–87b. 22 ‘Billigen’, see: 6 June 1952, BGHSt 3, 105. 23 ‘Billigend in Kauf nehmen’ is the common term for the BGH. See for example: 2 August 2009 BGH BeckRS 2009, 25029. 24 ‘Sich damit abfinden’, see: 4 November 1998 BGHSt 36, 1. For most German terms, see: V. Krey, ‘German Criminal Law – General Part – Volume II – Legal Elements of the Intentional Offence Committed by Action’ (Verlag W. Kohlhammer 2003), pp. 116–221. 25 HR 20 February 2007, NJ 2007, 313. 26 Compare ‘op de koop toenemen’ in HR 15 October 1996, NJ 1997, 199 with ‘billigend in Kauf nehmen’. 27 M.E. Badar, ‘Mens Rea – Mistake of Law & Mistake of Fact in German Criminal Law: A survey for International Criminal Tribunals’ International Criminal Law Review (2005), pp. 232–234. 28 BGHSt 7, 363. 29 M.E. Badar, ‘Mens Rea – Mistake of Law & Mistake of Fact in German Criminal Law: A survey for International Criminal Tribunals’ International Criminal Law Review (2005), p. 227. 30 BGHSt 7, 368–370. Intersentia 187  Jeroen Blomsma and David Roef therefore prefer to focus on the ‘externalisation of the presumed will’.31 From conduct under certain circumstances and through rules of general experience, it is inferred what the defendant thought and wanted.32 If the accused argues that he trusted in a good outcome, the credibility of that submission will be tested by reference to objective facts and circumstances. Eventualis is still accepted if the objective circumstances indicate that it is more than probable that he did accept the possibility that the risk would occur.33 This so-called ‘objective’ approach is hardly controversial in cases where the probability of the risk occurring was quite considerable. If conduct is so serious and death can be the only consequence, acceptance of the risk is easily assumed. For example, the defendant threw a hatchet with full force through a glass door at a police officer standing only five metres away from him.34 The fact that it is clear to anybody that this has a lethal risk is enough to infer that the defendant knew this too, after which it is easily accepted that since he acted in that way, he took this risk for granted.35 However, even in such cases, the volitional element can still be negated when there are contra-indications, i.e. circumstances indicating that the defendant did not accept the consequences.36 An example of such a contra-indication in Dutch case law is the danger to the actor himself. In a case where the defendant had driven very dangerously in a Porsche, which resulted in a lethal accident, it was held that if he had accepted the consequences of causing a collision, he would also have accepted the possibility of being killed himself. This was held to be unlikely, all the so more because the defendant had aborted some of the dangerous overtaking manoeuvres before causing the fatal one.37 In other cases of dangerous driving, conditional intent has been accepted in the absence of conduct that indicated the will to avoid a collision, like aborting overtaking manoeuvres.38 German courts also operate with a contra-indication of the volitional element related to fatal consequences. However, this relates to the death of the victims, not to the possibility that the defendant might also die himself.39 If a risk materialised into lethal consequences, there is a presumption that the defendant did not take these fatalities for granted, based on the assumed aversion of humans against killing other humans. It also operates in cases 31 A.A. Van Dijk, ‘Strafrechtelijke aansprakelijkheid heroverwogen’ (Maklu 2008), p. 234. 32 HR 25 March 2003, NJ 2003, 522; J. de Hullu, ‘Materieel Strafrecht – Over algemene leerstukken van strafrechtelijke aansprakelijkheid naar Nederlands recht’ (Kluwer 2015), p. 238. 33 M. Bohlander, ‘Principles of German Criminal Law’ (Hart Publishing 2009), p. 67. 34 16 July 1980 BGH NStZ 1981, 22. 35 D.H. De Jong and G. Knigge, ‘Het materiële strafrecht’ (Gouda Quint 2003), pp. 104–107. 36 A. Schönke and H. Schröder, ‘Strafgesetzbuch Kommentar’ (C.H. Beck Verlag 2006), p. 284. 37 HR 15 October 1996, NJ 1997, 199. 38 HR 5 December 2006, NJ 2006, 663; HR 23 January 2000, NJ 2001, 327; and HR 10 February 2009, NJ 2009, 111. 39 22 August 1996 BGHSt 42, 235. 188 Intersentia  Chapter VII. Forms and Aspects of Mens Rea where the defendant inflicted serious injuries upon the victim and is charged with attempting to kill the victim. Only in cases of really extremely violent acts will the German Supreme Court allow an inference of intent to kill from these dangerous acts.40 An interesting example of how the threshold is applied can be found in a case in which the victim, for the purpose of sexual gratification, had requested to be tied to a bed, have gasoline poured over him and asked the accused to ignite a lighter. At one point, the gasoline caught on fire and the victim burned to death. The District Court was not convinced that the volitional element was fulfilled but was remanded for requiring too much. The Supreme Court held that the acceptance requirement was already fulfilled by the statement of the defendant that she was happy that nothing happened the first times she ignited the lighter. If the actor acts despite knowing the great risk, extremely dangerous conduct makes it obvious that he or she took the occurrence of the result into the bargain, leaving the outcome to chance. The mere hope that nothing would happen cannot negate the ‘acceptance’ of the result.41 This decision strengthens the argument that the likelihood that the result will occur is paramount. The threshold therefore applies especially to those cases where the violence was not so extreme as to leave open the possibility of trusting in a non-lethal outcome.42 2.4. R ECKLESSNESS The English concept of recklessness has a similar function to dolus eventualis. As a middle ground of fault between intent and negligence, it enables a more serious kind of criminal liability in cases that would otherwise be labelled as mere negligence. However, an important difference is that recklessness constitutes a separate form of fault, whereas dolus eventualis is merely seen as the lowest degree of intent. Since recklessness is not a type of dolus, it does not serve the purpose of facilitating the proof of intentional offences. The lack of dolus eventualis in English law leads to a stricter concept of intent and thereby stricter concepts of attempt, participation and so on. Nevertheless, many offences cannot only be committed intentionally, but also recklessly. For example, the offence of inflicting grievous bodily injury can be committed intentionally (section 18 of the Offences against the Person Act 1861) as well as recklessly (section 20 of that Act). The difference with applying dolus eventualis is therefore that the reckless actor is labelled and punished differently. The reckless actor is, all 40 Like in 2 August 2009 BGH BeckRS 2009, 25029 and 25 March 2010 BGH NStZ 2010, 515. 41 20 June BGH NStZ 2000, 583. 42 C. Gatzweiler, ‘Rechtsvergleichende Untersuchung zur Unterscheidung von Vorsatz und Fahrlässigkeit in Spanien, Mexiko, Argentinien, Kolumbien und Deutschland’ (Shaker Verlag 2008), pp. 143–144. Intersentia 189  Jeroen Blomsma and David Roef other circumstances being equal, generally considered to be less culpable than the intentional actor. This is therefore also generally expressed in the maximum sentence that can be imposed on him. 2.4.1. A subjective test Recklessness can be generally defined as the conscious taking of an unreasonable risk. In contrast to dolus eventualis, recklessness does not require that the defendant takes the risk for granted. It only needs to be proven that the defendant was aware of a risk that is, in the circumstances known to him, unreasonable to take. Whereas dolus eventualis focuses on the attitude of the defendant, recklessness focuses on his awareness, on what he knew. The current legal definition of recklessness involves a subjective test, which was only affirmed in 2003 in the case of R v G and another.43 This landmark decision overruled the interpretation of recklessness as objective or inadvertent recklessness, which was dominant since the Metropolitan Police Commission v Caldwell case of 1982. Let us first give some attention to this type of recklessness, because it helps us to understand why the current subjective definition encompasses less culpability than (conditional) intent but more than (unconscious) negligence. 2.4.1.1. Caldwell recklessness Before Caldwell, the leading case on recklessness was R v Cunningham of 1957.44 In that case the defendant broke a gas meter to steal money from it, and the gas seeped out into the house next door, where Cunningham’s prospective mother-in-law was sleeping. She became so ill that her life was endangered.45 Cunningham was charged under section 23 of the Offences against the Person Act 1861 with ‘maliciously administering a noxious thing so as to endanger life’. The Court of Appeal said that ‘maliciously’ means intentionally or recklessly and defined recklessness as follows: ‘the accused has foreseen that the particular kind of harm might be done and yet has gone on to take the risk of it.’ This is clearly a subjective test. In the Caldwell case the House of Lords decided to use an objective definition of recklessness. Caldwell was an ex-employee of a hotel and nursed a grudge against its owner. He started a fire in the hotel, which caused some damage, and was charged with arson, an offence defined in the Criminal Damage Act 1971 as requiring either intention or recklessness. On the facts there was no intention, and regarding recklessness Lord Diplock stated that ‘“reckless” as used in the 43 R v G and another UKHL 50. 44 R v Cunningham 2 All ER 412. 45 C. Elliot and F. Quin, ‘Criminal Law’ (Pearson Education Limited 2010), p. 18. 190 Intersentia  Chapter VII. Forms and Aspects of Mens Rea […] definition of mens rea […] is an ordinary English word’ and should therefore not only be limited to the Cunningham meaning. It also includes failing to give any thought to whether or not there is any such risk. An objective test was introduced. The definition of recklessness extended not only to awareness of the risk but also to failure to foresee an obvious risk.46 The defendant ‘either has not given any thought to the possibility of there being any such risk or has recognised that there was some risk involved and has nonetheless gone on to do it.’47 Thus, being reckless did not merely mean being aware of a risk and taking it, but also taking a risk without thinking of the consequences. The Caldwell recklessness test became the standard for over twenty years. However, this purely objective test blurred the distinction between recklessness and negligence. Before Caldwell there was a clear difference: recklessness is the conscious taking of a risk which implies awareness of the risk; negligence traditionally meant unconsciously taking a risk of which one should have been aware. Now, the Caldwell test seemed to also encompass negligence, making the definition of recklessness over-inclusive. On the other hand, the objective test was also under-inclusive as it created a loophole in the law. Caldwell recklessness encompasses two different situations. A person acts recklessly when he either realises there is a risk and takes it anyway, or when he fails to see a risk that, by the objective standard of a reasonable man, he ought to have seen. It does not deal, however, with the person who thinks of possible consequences, but concludes that there are none and continues to act. In such a situation, the defendant would only be deemed to be negligent.48 Consider the person who builds a campfire and notices that the fire might spread to a nearby tent if he does not remove some loose dry grass next to the fire. He takes the necessary precautions and removes the grass, but inadvertently falls short of what was required: not all of the grass is removed and later the fire does spread, burning down the tent.49 The loophole was criticised for excluding from recklessness the person who stupidly rejects a risk, but including the person who stupidly never thinks about it. 2.4.1.2. R v G recklessness The Caldwell recklessness was rejected in 2003 in R v G and another. In this case, the two defendants, aged 11 and 12, set fire to some newspapers and then put a large wheelie-bin over the fire. They did not contemplate that the bin would catch fire and eventually lead to the burning down of a shop. The House 46 A. Ashworth and J. Horder, ‘Principles of criminal law’ (Oxford University Press 2013), p. 180. 47 R v Caldwell 1 All ER 961. 48 R v Reid 95 Cr App R 291; D. Ormerod and K. Laird, ‘Smith & Hogan: Criminal Law’ (Oxford University Press 2015), p. 159. 49 W.J. Winslade, ‘Brady on Recklessness’ Analysis (1972), p. 32. Intersentia 191  Jeroen Blomsma and David Roef of Lords decided that the lack of awareness negated the charge of recklessly damaging property, thereby overruling Caldwell and favouring the definition of recklessness provided by the Law Commission’s Draft Criminal Code Bill in 1989: ‘A person acts recklessly […] with respect to – (i) A circumstance when he is aware of a risk that it exists or will exist; (ii) A result when he is aware of a risk that it will occur; and it is, in the circumstances known to him, unreasonable to take the risk.’ In making clear that recklessness requires awareness, the difference with negligence is very clear again. Recklessness and culpa both revolve around the taking of unreasonable risks.50 The reckless actor is aware of the risk he has taken, whereas the negligent actor is unaware of the risk he created, although he should have and could have known. Awareness is the clear dividing line; there is no room for concepts like conscious negligence in English law. Recklessness thus brings about a narrower concept of culpa, namely inadvertent negligence. The main rationale for requiring awareness for recklessness is that risky action is only morally significant if the defendant acted knowing the risk.51 Lack of background knowledge, ignorance, stupidity and gullibility are not the type of vices that can ground recklessness.52 However, like the requirement of awareness in dolus eventualis, this requirement of recklessness does not necessarily present evidential difficulties in practice, since it can be inferred from objective facts and circumstances. 2.4.2. An unreasonable risk The defendant needs to be aware of a risk that is, in the circumstances known to him, unreasonable to take. In short, this requires that the defendant needs to be aware of any degree of risk. In addition, however, this risk objectively needs to be unreasonable.53 Thus, the defendant’s awareness need not relate to the unreasonableness of the risk. Whether this risk is in fact unreasonable is assessed objectively, independent of the evaluation of the defendant. The question is 50 T. Weigend, ‘Zwischen Vorsatz und Fahrlässigkeit’ Zeitschrift für die gesamte Strafrechtswissenschaft (1981), pp. 676–677. 51 A. Duff, ‘Intention, Agency and Criminal Liability: Philosophy of Action and the Criminal Law’ (Basil Blackwell Ltd 1990), pp. 142 and 153. 52 V. Tadross, ‘The Nature of “Partial Defences” and the Coherence of (Second Degree) Murder’ Criminal Law Review (2005), pp. 250–255. 53 A.P. Simester, J. Spencer, G.R. Sullivan and G. Virgo, ‘Simester and Sullivan’s Criminal Law – Theory and Doctrine’ (Hart Publishing 2013), p. 140; A. Duff, ‘Intention, Agency and Criminal Laibility: Philosophy of Action and the Criminal Law’ (Basil Blackwell Ltd 1990), p. 143. 192 Intersentia  Chapter VII. Forms and Aspects of Mens Rea whether a reasonable man having such foresight would have proceeded with his conduct notwithstanding the risk.54 The risks that are relevant for recklessness are assessed normatively, which means that the relevance of a risk is not only judged according to the likelihood of its occurrence, but also to the social utility of the act relative to the nature and extent of the harm that is caused when the risk occurs. In other words, a small chance of great harm can be a relevant risk.55 The more valuable a legal interest is, the sooner a risk becomes relevant. The opposite is of course also true. The risk can be reasonable if the actor furthers a good cause. We take risks all the time, often even professionally. Driving a vehicle or operating an industrial machine in compliance with the pertinent rules may cause unwanted side-effects, but when they occur, this does not make us reckless.56 The taking into account of these normative factors also explains why there is no need for a threshold of probability, like in most civil law systems.57 Thus, in contrast to the Dutch concept of dolus eventualis, the risk in recklessness need not be considerable. 2.4.3. Recklessness in HIV cases The criteria for recklessness may be further illustrated if we reconsider cases of HIV infection. The above-mentioned scenarios of HIV infection lead to liability for recklessness in England.58 Even if the chance of infection is small, the harm caused is very serious and the risk taken therefore unreasonable. Moreover, there is no social utility in having unprotected instead of protected sexual intercourse. This normative approach explains why the chance of infecting someone with HIV need not be considerable to infer recklessness.59 As a result, defendants have tried to avoid liability by arguing that their partners, by consenting to unprotected sexual intercourse, also consented to the risk of HIV infection. This has however been consistently rejected. A pertinent example can be found in the Konzani case. Konzani, of Malawian nationality, had lived in the UK for several years when he was convicted of recklessly transmitting HIV to three different female partners. Konzani admitted he had acted recklessly, but he wished to rely on the defence of consent. 54 A.P. Simester, J. Spencer, G.R. Sullivan and G. Virgo, ‘Simester and Sullivan’s Criminal Law – Theory and Doctrine’ (Hart Publishing 2013), p. 140. 55 A. Ashworth and J. Horder, ‘Principles of criminal law’ (Oxford University Press 2013), p. 176. 56 T. Weigend, ‘Comments on Jeroen Blomsma’s Case of Recklessness’, in A. Klip (ed.), Substantive Criminal Law of the European Union (Intersentia 2011), p. 164. 57 D. Ormerod and K. Laird, ‘Smith and Hogan: Criminal Law’ (Oxford University Press 2015), pp. 129–131. 58 R v Dica EWCA Crim 1103. 59 For attempt, recklessness is insufficient. In contrast to German and Dutch law, there can thus be no liability if no infection occurred. Intersentia 193  Jeroen Blomsma and David Roef R v Konzani EWCA Crim 706 ‘The prosecution did not seek to prove that the disease was deliberately transmitted, with the intention required by s 18 of the 1861 Act. The allegation was that the appellant behaved recklessly on the basis that knowing that he was suffering from the HIV virus, and its consequences, and knowing the risks of its transmission to a sexual partner, he concealed his condition from the complainants, leaving them ignorant of it. When sexual intercourse occurred these complainants were ignorant of his condition. So although they consented to sexual intercourse, they did not consent to the transmission of the HIV virus. Dica60 analysed two different sets of assumed facts arising from the issue of the complainants’ consent, by distinguishing between the legal consequences if, as they alleged, the truth of his condition was concealed from his sexual partners by Dica, and the case that he would have developed at trial if he had not been prevented from doing so by the judge’s ruling, that far from concealing his condition from the complainants, he expressly informed them of it, and they, knowing of his condition because he had told them of it, consented to unprotected sexual intercourse with him. There is a critical distinction between taking a risk of the various, potentially adverse and possibly problematic consequences of sexual intercourse, and giving an informed consent to the risk of infection with a fatal disease. […] If an individual who knows that he is suffering from the HIV virus conceals this stark fact from his sexual partner, the principle of her personal autonomy is not enhanced if he is exculpated when he recklessly transmits the HIV virus to her through consensual sexual intercourse. On any view, the concealment of this fact from her almost inevitably means that she is deceived. Her consent is not properly informed, and she cannot give an informed consent to something of which she is ignorant.’ A more far-reaching case is R v Adaye from 2004, unfortunately unreported, which raises the question of how much awareness is actually required in recklessness. The defendant was convicted for infecting his sexual partner by having unprotected vaginal intercourse. The defendant did not know he was infected with HIV, but the Court found it sufficient that he was aware of a higher risk of infection, since his wife had informed him that she was HIV positive. The knowledge required for reckless HIV infection is thus not only actual knowledge of being HIV positive, but also knowledge that one may be infected.61 The Court acknowledges that it must be about a high risk of being infected. If not, everyone who cannot rule out they are not HIV positive could be held to be reckless. What matters is the concrete situation of the defendant. It mattered that Adaye had been having sex with his HIV-positive wife for years and never took 60 In R v Dica EWCA Crim 1103 it was already decided that consent to intercourse does not automatically amount to consent to the risk of HIV infection. 61 S. Ryan, ‘Risk-taking, Recklessness and HIV Transmission: Accommodating the Reality of Sexual Transmission of HIV within a Justifiable Approach to Criminal Liability’ The Liverpool Law Review (2007), pp. 219–220. 194 Intersentia  Chapter VII. Forms and Aspects of Mens Rea a test since he had been told she had the disease. If he had been acquitted, this could have discouraged others from getting a HIV test, thinking they would be safe as long they were not formally informed they were infected. Adaye was therefore not held liable for mere knowledge of possible infection, but for shutting his eyes to the obvious. Nonetheless, the broad concept of awareness remains problematic. Should a prostitute also be held liable? A man who leads a dissolute life? At what point should suspicion or fear be considered awareness? The line between awareness and negligence risks being blurred. It equates the person who actually knew about the risk he took with the person who was unsure of the risk in the first place. In addition, if awareness of any chance of harm occurring would suffice to hold a person liable, the scope of liability may become very wide. That is why in legal systems that accept conditional intent, particularly in German law, much emphasis is put on the attitude of the perpetrator. Dolus eventualis is not only about being aware of the risks; the perpetrator must have also taken it for granted or have been at least indifferent about whether they will occur or not. In most continental legal systems, that attitude is the decisive threshold of intention. The lower limit is not the concept of risk, but the attitude of the perpetrator towards that risk. 2.5. NEGLIGENCE OR CULPA Negligence or culpa is the least serious fault element in all legal systems. In German law it is even explicitly stipulated that negligence does not carry criminal liability unless a particular provision provides for its punishment. This is clear from the words of §15 GCC which provides that ‘only intentional acts are punishable, unless the law expressly threatens negligent acts with punishment.’62 Negligence is undoubtedly the most normative form of mens rea and is primarily based upon a violation of the required duty of care that causes a result prohibited by criminal law.63 Comparatively speaking, most civil law systems distinguish between two forms of culpa, namely conscious and unconscious negligence. Conscious negligence exists where the actor foresees a possibility of a consequence resulting from his conduct, but wrongfully relies on the idea that 62 This rule allows the legislator to simplify the code by omitting specific references to intentional conduct. Consequently, where a provision is silent on the fault element, it would be read as requiring intentional conduct (see e.g.: the manslaughter provision §212 GCC). M.E. Badar, ‘Mens Rea – Mistake of Law & Mistake of Fact in German Criminal Law: A survey for International Criminal Tribunals’ International Criminal Law Review (2005), p. 232. 63 A.A. Van Dijk, ‘Strafrechtelijke aansprakelijkheid heroverwogen’ (Maklu 2008), pp. 54–55 and 61–62; V. Krey, ‘German Criminal Law – General Part – Volume I – Basics’ (Verlag W. Kohlhammer 2002), pp. 142–143. Intersentia 195  Jeroen Blomsma and David Roef the result would not occur. In case of unconscious negligence, the actor, because of a lack of care, wrongfully does not consider the consequences of his conduct.64 By contrast, since English law already accepts recklessness as a third fault element, and distinguishes recklessness from negligence by awareness of the risk, it does not recognise conscious negligence. Negligence in England is always unconscious or inadvertent negligence. It is interesting to note that negligence offences are not that popular in the English system, the main exception being the offence of gross negligence manslaughter. Not even five per cent of all offences are crimes of negligence, while on the continent most intentional offences have a negligent counterpart.65 In the traditional English view negligence is not even considered a genuine form of mens rea, i.e. a cognitive (subjective) state of mind, but is rather a failure to comply with a standard of conduct.66 This perspective however fails to recognise that in ‘state of minds’ like recklessness, normative questions also play an important role.67 In Germany and the Netherlands, negligence is much more popular because these legal systems only operate with two kinds of mens rea. If intent cannot be proven, negligence functions as a safety net. As discussed, in England there is less need for negligence liability due to the concept of recklessness covering cases that are labelled as conscious negligence on the continent. 2.5.1. Conscious negligence The mens rea for the perpetrator who is aware of a risk, but does not take this for granted, is called conscious negligence in most continental legal systems. The perpetrator is conscious of the risk, but trusts in a good outcome. He does not take it for granted, but thinks everything will be all right. In other words, the main difference between dolus eventualis and conscious negligence is related to the attitude of the actor.68 While both concepts involve foresight, conditional intent can only be present when the actor has reconciled himself with the result. To determine dolus eventualis the question is whether the actor foresaw and accepted the possibility in the bargain. For conscious negligence, the question becomes 64 M.E. Badar, ‘Mens Rea – Mistake of Law & Mistake of Fact in German Criminal Law: A survey for International Criminal Tribunals’ International Criminal Law Review (2005), p. 233; J. de Hullu, ‘Materieel Strafrecht – Over algemene leerstukken van strafrechtelijke aansprakelijkheid naar Nederlands recht’ (Kluwer 2015), pp. 262–263. 65 A.J. Ashworth and M. Blake, ‘The Presumption of Innocence in English Criminal Law’ Criminal Law Review (1996), p. 308. See also: Chapter IV on Actus Reus and Mens Rea. 66 A.J. Ashworth and J. Horder, ‘Principles of criminal law’ (Oxford University Press 2013), pp. 175–176; D. Ormerod and K. Laird, ‘Smith & Hogan: Criminal Law’ (Oxford University Press 2015), p. 121. 67 G.P. Fletcher, ‘The Grammar of Criminal Law – American, Comparative and International – Volume One: Foundations’ (Oxford University Press 2007), p. 102. 68 J. de Hullu, ‘Materieel Strafrecht – Over algemene leerstukken van strafrechtelijke aansprakelijkheid naar Nederlands recht’ (Kluwer 2015), pp. 235–242. 196 Intersentia ~ Chapter VII. Forms and Aspects of Mens Rea whether he foresaw the result ensuing (subjective test) and if a reasonable man would have accepted that possibility (objective test). The above-mentioned case of the German Supreme Court of 4 November 1988 sums up the difference very well: ‘According to settled case law of the Supreme Court on the distinction between dolus eventualis and conscious negligence, the perpetrator acted intentionally when he recognised as possible and not entirely unlikely that the consequence as specified in the offence definition would occur and agrees with this in the manner that he accepts the consequence and approves of it, or, for the sake of the desired goal, at least comes to terms with it, even if he did not desire the occurrence of the consequence; conscious negligence, on the other hand, exists when the perpetrator does not agree with the materialisation of the offence element he recognised as possible and seriously – not just vaguely – trusts that this offence element will not materialise. […] Given the now widespread knowledge about the risk of infection from unprotected sexual encounters, it is reasonable to assume that in a case such as this one, the perpetrator recognises the possibility of infecting his partner and, that if he continues anyway, he accepts the concomitant danger and approves of it, or, in order to satisfy his sexual urges, at least comes to terms with its materialisation.’ The volitional element is therefore essential in legal systems such as the German and Dutch ones, because it demarcates intention from the lesser mens rea of negligence. In cases where the risk did not materialise, the distinction is even more important, as intention is required for attempt liability. Thus, if the defendant did not take the risk for granted and it also did not occur, there can be no attempt liability. 2.5.2. Unconscious negligence Since English law distinguishes recklessness from negligence by awareness, it only accepts inadvertent negligence, i.e. a culpable failure to be aware of the unreasonable risk entailed in one’s conduct. This unconscious negligence makes up for the least serious kind of mens rea in most other legal systems too. In order to find negligence, the actor should have been able to foresee that the offence would be fulfilled by his carelessness.69 Generally, this is inferred from the violation of a duty of care. Detailed codes of conduct have been established, either legally binding or not, for almost every type of behaviour, with a view to prevent certain harm or danger. This facilitates the assumption that the violation of such a duty makes it foreseeable that the harm would occur. However, debate remains possible in cases of simple violations. For instance, does exceeding the speed limit make an accident foreseeable? 69 J. de Hullu, ‘Materieel Strafrecht – Over algemene leerstukken van strafrechtelijke aansprakelijkheid naar Nederlands recht’ (Kluwer 2015), pp. 264–266. Intersentia 197  Jeroen Blomsma and David Roef In comparison with intention and foresight, inadvertent negligence considerably extends the scope of criminal liability. It does not need to be proven that the defendant was aware of the risks of his conduct. The extension helps to convict not only those who deny they were aware, which cannot be disproven without reasonable doubt, but also those who were truly ignorant. Negligence liability may be specifically warranted in a professional context, where a person’s carelessness can lead to very serious harm to many people. If maintenance on a nuclear reactor is not carried out appropriately and in a timely manner, any problems as a result of this may have catastrophic consequences. On the other hand, people take risks all day, every day. By driving a car, we run the risks of making errors and causing harm. If the mere occurrence of the harm would bring about punishment, we would possibly do nothing at all. Everyday life would be crippled. In order to strike a balance, negligence is limited in a number of ways. First of all, the negligent defendant is not punished because he was unaware of the risks of his conduct, but because he should and could have been aware of those risks. Inadvertent negligence is therefore distinguished into an objective and a subjective part.70 The objective part includes the breach of a duty of care and its causal connection to the consequence. If it is established that the actor breached this duty, he is generally considered to have been careless. The subjective part is therefore better seen as an exceptional criterion that can negate culpa if it appears that this particular defendant, given his capacities, could not meet the required standard of care.71 Consider the defendant who exceeded the allowed amount of a certain substance in his product. As a result of this breach of duty, he caused injuries to consumers that are attributed to him under negligence. The subjective part is only absent by exception and therefore generally assumed. In order to escape liability the defendant himself will have to make plausible that he did everything that could be reasonably expected of him. This brings us to the second limitation: negligence is only about taking unreasonable risks. This means that the required nature and degree of care that the defendant should have taken is established by reference to what can be expected from a sensible and conscientious person, taking into account the concrete circumstances and the social role of the actor.72 Individual characteristics that are taken into account to determine what degree of diligence could be expected from the defendant are, amongst other things, his professional position, role, education and age. A professional is judged according to what a general person in that profession would do. For example, what could be expected from a reasonable 70 A.A. van Dijk, ‘Strafrechtelijke aansprakelijkheid heroverwogen’ (Maklu 2008), p. 39; A. Schönke and H. Schröder, ‘Strafgesetzbuch Kommentar’ (C.H. Beck Verlag 2006), pp. 162 and 296. 71 J. Blomsma, ‘Mens rea and defences in European criminal law’ (Intersentia 2012), pp. 174–175. 72 1 February 2005 BGH NStZ 2005, 446; A. Schönke and H. Schröder, ‘Strafgesetzbuch Kommentar’ (C.H. Beck Verlag 2006), p. 300. 198 Intersentia  Chapter VII. Forms and Aspects of Mens Rea doctor, building inspector or constructor?73 When the actor enters into special situations, accepts a function or takes part in traffic or sports, he must abide by the applicable rules and is considered to be competent to carry out the activity. He gives guarantees, on which others may rely. This ‘Garantenstellung’ concretises the standard person to which the defendant is compared. Finally, the degree of carelessness must be gross. Only that degree of carelessness may be punished that falls substantially short of the standard of what can be expected of someone.74 In other words, culpa lata (gross negligence) is contrasted with mere culpa levis (light negligence), which is sufficient for civil but insufficient for criminal liability.75 Requiring mere culpa levis implies that any shortcoming of the accused is sufficient. The actor would then be compared to the most able, thoughtful and careful person. In contrast, the defendant is compared to the reasonable or normal person modified by the concrete circumstances and the social role of the actor.76 Culpa should be limited to prevent fears expressed towards negligence liability from being realised, for example that negligence liability can be imposed on all, even the law-abiding citizen, and secondly, that it can be imposed on everyone at least once. Human faults are inevitable, but gross carelessness not.77 These conditions can be illustrated in the case dealt with by the Dutch Supreme Court on 14 November 2000, where the defendant was an intern working in a pharmacy under the supervision of a pharmacist. When preparing medicines on the basis of a recipe, she had made the mistake of adding methadone to capsules instead of cellulose. As a result of taking these pills, one person died and two others sustained serious bodily injury. The intern was tried and convicted for negligently causing death and serious bodily injury. Dutch Supreme Court, 14 November 2000, NJ 2001, 37 ‘The Court of Appeal considered under the heading “Considerations regarding evidence”: (i) that a significant degree of attention may be required from any person working in a pharmacy, given the risks to health involved in the pursuit of these activities; (ii) that this also applies to any person who works in a pharmacy in the context of a training; and 73 J. de Hullu, ‘Materieel Strafrecht – Over algemene leerstukken van strafrechtelijke aansprakelijkheid naar Nederlands recht’ (Kluwer 2015), p. 265. 74 A.P. Simester, J. Spencer, G.R. Sullivan and G. Virgo, ‘Simester and Sullivan’s Criminal Law – Theory and Doctrine’ (Hart Publishing 2013), p. 152. 75 A. Schönke and H. Schröder ‘Strafgesetzbuch Kommentar’ (C.H. Beck Verlag 2006), pp. 323–324; D.H. de Jong, ‘Onbewuste schuld – Een probleem bij de kwalificatie of bij de straftoemeting?’ (Kluwer 2007), p. 3. 76 J. Blomsma, ‘Mens rea and defences in European criminal law’ (Intersentia 2012), p. 191. 77 A. Schönke and H. Schröder, ‘Strafgesetzbuch Kommentar’ (C.H. Beck Verlag 2006), p. 323. Intersentia 199  Jeroen Blomsma and David Roef (iii) that the difference in size between the pots of cellulose and methadone – as the Court has observed – is considerable and that the pot of methadone also has a red dot to draw attention to the dangerous nature of the substance; and (iv) that, in view of these circumstances, the accused did not meet the required level of mindfulness and alertness.’ During the preparation of the pills, the intern had noticed a difference in weight and had asked the assistant whether she should start over, upon which the assistant had said that that was not necessary. She said these differences in weight were common and that she should just add some more filler. The defendant’s lawyer aimed to negate his client’s negligence by pointing out this permission to continue. However, the Court of Appeal rejected this plea, referring to the preceding carelessness of the intern in taking the wrong jar. The Supreme Court upheld the conviction of the intern, confirming that this does not affect the judgment shown in the cited paragraph that the defendant acted very carelessly by taking the wrong pot and using its contents. 3. DEMARCATION FROM PR EMEDITATION AND MOTIVE Having compared the different forms of mens rea, it should be noted that some offence definitions contain more subjective elements than the fault elements of intention, recklessness and/or negligence. These elements usually do not constitute liability, but either aggravate (or sometimes mitigate) the reproach and the sentencing range. We may illustrate this by referring to the Dutch homicide provisions, where the element of ‘premeditation’ is used as an aggravating circumstance of manslaughter. Article 287 DCC defines intentional manslaughter (doodslag) as follows: ‘He who intentionally takes the life of another is, as guilty of manslaughter, punished by a term of imprisonment of not more than fifteen years or a fine of the fifth category.’ However, Article 289 DCC defines the most serious form of intentional killing as murder (moord) by adding the element of premeditation, thereby also increasing the maximum punishment: ‘He who intentionally and with premeditation takes the life of another person is, as guilty of murder, punished by life imprisonment or a term of imprisonment of not more than thirty years or a fine of the fifth category.’78 78 To be complete, next to these intentional forms of homicide, Article 307 DCC punishes negligent manslaughter (dood door schuld). 200 Intersentia  Chapter VII. Forms and Aspects of Mens Rea Premeditation can be generally defined as the defendant’s weighing of contrasting motives and the decision to break the law, a psychological element of reflection implying a higher degree of control and legal hostility. This is then juxtaposed with spontaneous or impulsive killing.79 Now, premeditation has to be distinguished from fault elements because premeditation precedes the intentional act of killing.80 Moreover, the psychological element of refection is not only proven very objectively, it could even be said that, according to Dutch case law, the criterion of premeditation consists of the mere opportunity to reflect.81 To distinguish on the basis of premeditation used to be common in Germany too.82 At present however, murder is defined as intentional killing coupled with an array of possible motives and modi operandi, not including premeditation. §211 GCC reads as follows: ‘(1) Whosoever commits murder under the conditions of this provision shall be liable to imprisonment for life. (2) A murderer under this provision is any person who kills a person for pleasure, for sexual gratification, out of greed or otherwise base motives, by stealth or cruelly or by means that pose a danger to the public or in order to facilitate or to cover up another offence.’ In comparison, the manslaughter (Totschlag) offence of §212 GCC holds a person who intentionally kills someone, but without being a murderer, liable to imprisonment of not less than five years. This illustrates how important it is to distinguish motives from intent. The concept of dolus is in itself value-neutral, has no moral connotations and does not therefore include evil motives.83 Intentionally killing a person refers to exactly that and not to killing because of an additional evil motive. In English law mens rea is also considered to be value-neutral. Although traditionally mens rea used to encompass not only thoughts in the mind but also the dark motives and roiling emotions that lay beneath, in time, emotions and motive have been cut from the core of the concept.84 For example, because 79 C.F. Stuckenberg, ‘Vorstudien zu Vorsatz und Irrtum im Völkerstrafrecht’ (De Gruyter Recht 2007), pp. 279–281. 80 J. de Hullu, ‘Materieel Strafrecht – Over algemene leerstukken van strafrechtelijke aansprakelijkheid naar Nederlands recht’ (Kluwer 2015), p. 259. 81 HR 27 June 2000, NJ 2000, 605; HR 11 June 2002, NbSr 2002; F.S. Bakker, ‘Voorbedachte raad’ Delikt en Delinkwent (2011), pp. 220–246. 82 W. Joecks and K. Miebach, ‘Münchener Kommentar zum StGB; Band 1’ (C.H. Beck Verlag 2003), note 2 on §211 GCC. 83 A.P. Simester, J. Spencer, G.R. Sullivan and G. Virgo, ‘Simester and Sullivan’s Criminal Law – Theory and Doctrine’ (Hart Publishing 2013), p. 126; D. Ormerod, ‘Smith & Hogan: Criminal Law’ (Oxford University Press 2005), p. 23. 84 N.J. Finkel and W.G. Parrot, ‘Emotions and culpability: How the Law is at odds with Psychology, Jurors and Itself’ (American Psychological Association 2006), p. 23. Intersentia 201  Jeroen Blomsma and David Roef the term ‘malice aforethought’ – the fault element for murder – was held to have connotations of ‘ill will’ or ‘wickedness’, it was judicially disapproved.85 Malice aforethought has come to mean either an intention to kill or an intention to cause grievous bodily harm. The defendant’s motives need not be malicious, and are in fact irrelevant. For example, deliberate euthanasia prompted by motives of compassion fulfils the fault element for murder just as well as shooting someone because you want the victim’s money. In German law, however, only the second scenario would be considered murder. The demarcation of fault elements from motive does not mean that motives are not relevant at all. Obviously, they are relevant in sentencing, but they may have an influence on criminal liability too. They may relate to wrongfulness and blameworthiness and may therefore become relevant for the application of justifications and excuses. For example, a person may have intentionally killed an aggressor with the purpose of self-defence, i.e. to defend life, limb and goods of oneself or another. This motive is quite different from revenge, and may even lead to a negation of criminal liability.86 4. STRICT LIABILITY The rule that mens rea is an essential element of every crime is not without exceptions. Some offences do not require a fault element at all. These are generally known as strict liability offences. Most of these offences are of a regulatory nature and are created by specific statutes.87 For example, in most legal systems you may be fined for speeding, regardless of whether you knew or should have known that you were driving too fast. The self-evident nature of such an offence begs the question why we require mens rea in the first place, and usually the maximum sentencing is relatively small. In most instances, strict liability serves a pragmatic purpose. Offences like speeding are committed on a large scale. Not requiring proof of mens rea significantly strengthens the hand of enforcement. Drivers cannot claim that they did not know they were going too fast. The simple establishment of exceeding the speed limit suffices for punishment.88 Strict liability is very common in the English legal system. Most of the approximately 8,000 offences in England are strict liability offences with relatively low penalties and almost half of the more serious offences contain 85 R v Cunningham 2 All ER 412. 86 See: Chapter VIII, section 3. 87 A.P. Simester, J. Spencer, G.R. Sullivan and G. Virgo, ‘Simester and Sullivan’s Criminal Law – Theory and Doctrine’ (Hart Publishing 2013), p. 175. 88 A.P. Simester, J. Spencer, G.R. Sullivan and G. Virgo, ‘Simester and Sullivan’s Criminal Law – Theory and Doctrine’ (Hart Publishing 2013), p. 191; A. Ashworth and J. Horder, ‘Principles of criminal law’ (Oxford University Press 2013), p. 162–163. 202 Intersentia  Chapter VII. Forms and Aspects of Mens Rea a strict element.89 In the Netherlands, strict liability is also common in misdemeanours.90 By contrast, in German criminal law, strict liability is generally rejected altogether, even if it concerns regulatory law.91 Strict liability does not mean that persons will simply be punished for doing something illegal. Although no subjective connection of mens rea is required between the conduct and the perpetrator, the defendant can always raise a defence of due diligence. If this is accepted, the defendant is acquitted. For instance, if the defendant exceeded the speed limit, but his speedometer told him otherwise, this mistake may be excused, provided he did not drive so excessively fast that he could have known his speedometer was incorrect. In order to successfully rely on the defence, the defendant must demonstrate he did everything he could reasonably do to avoid the mistake. Again, more will be required from a professional mechanic. Any other person should in principle be able to rely on the periodical technical inspection of his vehicle. In those circumstances, the judge would need to acquit the defendant. A defence of due diligence against strict liability offences is particularly relevant for professional actors. Strict liability is very common in a professional, economic, legal context. Actors are required to abide by strict duties of care. English statutes often explicitly provide for such a defence, such as in section 8 of the Health Act 2006: ‘“Offence of failing to prevent smoking in smoke-free place” (1) It is the duty of any person who controls or is concerned in the management of smoke-free premises to cause a person smoking there to stop smoking. […] (4) A person who fails to comply with the duty in subsection (1), or any corresponding duty in regulations under subsection (3), commits an offence. (5) It is a defence for a person charged with an offence under subsection (4) to show – (a) that he took reasonable steps to cause the person in question to stop smoking, or (b) that he did not know, and could not reasonably have been expected to know, that the person in question was smoking, or (c) that on other grounds it was reasonable for him not to comply with the duty.’ A defendant would be able to rely on the grounds listed in subsection (5) to escape conviction for failing to prevent smoking in a smoke-free place. The most common forms of due diligence are listed under (a) and (b), while (c) leaves room for any other form of due diligence defence. Most continental legal systems would not specify the possible exceptions to the norm in law, leaving 89 A. Ashworth and J. Horder, ‘Principles of criminal law’ (Oxford University Press 2013), pp. 20, 155 and 164. 90 T. Blom, ‘Opiumwetgeving en drugsbeleid’ (Kluwer 2008), p. 122. 91 M. Hörster, ‘Die strict liability des englishen Strafrechts – Zugleich eine Gegenübertstellung mit dem deutschen Straf- und Ordnungswidrigkeitenrecht’ (Duncker & Humboldt 2009), pp. 29–44. Intersentia 203  Jeroen Blomsma and David Roef the concretisation of what is acceptable under a due diligence defence to the Court, possibly guided by some examples in the explanatory documents of the legislation. It can be expected however that similar exceptions to such a broad criminalisation would be accepted in all legal systems. When a due diligence defence is accepted, the defendants are not acquitted because a fault element was lacking. After all, the strict offence requires no fault at all. They are acquitted because the defendant was blameless. As already mentioned in Chapter IV, like fault, blameworthiness also requires a subjective connection between act and perpetrator. However, this connection is of a much more diluted nature than that of intention and negligence. It is an ‘implied’ element of every crime – situated in the third tier in the tripartite structure of an offence – and negated by an excuse, like duress or due diligence. These defences follow from the principle of guilt, in Latin nulla poena sine culpa. This means there may be no punishment without blameworthiness. According to the ECtHR, strict liability is therefore only acceptable as long as it remains possible for the defendant to escape punishment by making probable that he cannot be blamed for committing the offence.92 By contrast, German law interprets the principle of guilt much more broadly as ‘no punishment without negligence’ and even attaches constitutional status to it. With some exceptions,93 German law thus always requires negligence and rejects strict liability. 5. CONCLUDING R EMARKS This chapter set out to discuss the subjective or fault elements of a crime. All legal systems distinguish different forms of mens rea, reflecting degrees of culpability. For example, homicide can be committed intentionally or by negligence. Such a difference in terms of fault is also often expressed in the range of punishment that can be imposed. It has been attempted to show that the most serious and the least serious fault elements – dolus (in)directus and inadvertent negligence – are quite similar in all three legal systems. From both a comparative and conceptual perspective, the most interesting form of mens rea is the fault element that deals with situations of dangerous risk-taking, situated in between these two extremes. An adequate legal protection of interests demands an additional form of mens rea that encompasses less culpability than intention but more than negligence. In the English legal system, the separate fault element of recklessness fulfils this important role. The functional equivalent in civil law systems, like Germany and the Netherlands, is not a separate kind of fault, but a broadening of intent, called dolus eventualis, that includes the conscious acceptance of side-effects. Whereas dolus directus and indirectus consist of a great degree of volition or 92 Salabiaku v France, Appl. No. 10519/83, 7 October 1998. 93 See for example: §§186, 323a and 231 GCC. 204 Intersentia  Chapter VII. Forms and Aspects of Mens Rea knowledge, which allows them to be viewed as equally culpable, dolus eventualis consists, as it were, only of residues of both aspects. Hence dolus eventualis is the lowest form of intent, resembling in terms of rationale and function the English law concept of recklessness. Dolus eventualis is quite similar in Germany and the Netherlands. The cognitive component of conditional intent refers to the awareness of a risk; the volitional component is about the attitude of the actor, whether he accepted and took the risk into the bargain. However, there is still this important difference: since German law does not require that the risk must be considerable, the limiting function of the volitional element is more important than in the Netherlands. In German law it is therefore often assumed that the defendant did not accept the realisation of a risk that was merely possible, whereas under Dutch law a small chance has already been excluded from conditional intent under the cognitive limb. It should also be noted that in civil law systems the difference between dolus eventualis and negligence is based on the volitional element. If the actor was aware of the risk but did not reconcile himself to that risk, there can (only) be conscious negligence. In contrast, in the English common law system, the difference between recklessness and negligence is based on awareness. The negligent actor is unaware of the risk. He cannot be acquitted of recklessness by arguing that he trusted in a good outcome. The awareness of the risk is decisive, not whether he accepted it or not. Recklessness therefore subsumes cases that in Dutch and German criminal law are covered by dolus eventualis and conscious negligence. The only exception to the rule that no criminal liability is allowed without proof of a fault element are so-called strict liability offences. It is interesting to note that while strict liability is quite popular in the Netherlands and England, and the principle of guilt as interpreted by the ECtHR does not militate against it, German criminal law strongly objects to this form of liability. Intersentia 205