STUDY CRIMINAL FILLETTI.docx

**[Insanity essay]** Insanity means that one lacks the capacity to will and to understand. Our courts use UK sources, the McNaughton guidelines and also follow Carrara's theory of criminal responsibility in interpreting what insanity is. Insanity is recognised as a criminal defence against criminal responsibility. Article 33 refers to insanity in our law and it states that a person is exempt from criminal responsibility if at the time of the act of the omission complained of: the person was in a state of insanity and was constrained by an external force he could not resist. Our law creates an exemption from criminal responsibility but does not give an exact legal definition When forming criminal intent it presupposes the fact that every person has the capacity to will and to understand and these two capabilities together ensure a person can form intent. A person not only understood his her actions but also acted freely. Hence it follows that any state of mine which impairs either of these capacities can cause a state of insanity. The question remains how to define this legal state of insanity. Professor Mamo in defining insanity has always referred to answers delivered by English judges: that every man is presumed to be innocent and to possess a sufficient degree of the crime until contrary is proved to the satisfaction of the jury and it has to be clearly shown that at the time of the commission of the offence, the person accused was labouring under such defect of reason, acting from disease of the mind as not to know the nature and quality of the act he was doing and not to know what he was doing was wrong morally. There is a presumption of sanity, you suppose that people are sane, however you can try to convince a jury otherwise.. This is the form of insanity which affects the ability of a person to understand his/her actions. If a person cannot understand her actions and is devoid of a capacity to understand, they cannot be held criminally responsible. Disease of the mind affects the capacity of the person to understand. As a result of the disease of the mind the accused cannot understand the nature and quality of his/her actions and that what she is doing is wrong. This is still not shown as a requirement in the maltese criminal code as it would limit causes such as the notion of temporary insanity. Also - Blackstone says that "whether something is a disease of the mind depends on the consequences it produces -- impairment of faculties of reason, memory and understanding" and that " not every impairment of these mental faculties is a disease of the mind". The maltese courts also recognise another form of insanity , known as the irresistible impulse test. This form of insanity is based on the lack of fundamental capacity required pursuant of carrara's theory of responsibility. In this form of insanity, it is the capacity to will, the volitional capacity which is absent as a result of insanity. Here another defence can be founded. In this case a person would be understanding her actions and would know that what she is doing is morally wong but is not able to control his/her actions, faculty of choice and free determination are absent. this form of insanity is not recognised in England. Ultimately it is a jury which determines if insanity exists or not. This was established in case pulizija vs Nicholas grech. Insanity must also exist at the time of the commission of the offence.and it all comes down to his responsibility or irresponsibility at the time of the offence **[INTOXICATION ESSAY ]** The abuse of alcohol by persons may bring them under certain circumstances within the category of insanity. In other words, insanity may be induced by the direct effects of alcohol. Mr Justice Harding points out "If drunkenness produced frenzy or insanity (dementia affectata) then, it could be pleaded under article 34 which exempts a person from punishment, if at the time of the act or omission committed, he was in a state of frenzy or madness". The defence of insanity is found in article 34. When law mentions intoxication, it does not only refer to alcohol but also to drugs or narcotics. Article 34(2) shows exceptions to the rule that intoxication isn't a defence by showing when intoxication is a defence to a criminal charge. The provisions of article 34 follow the English law of criminal responsibility in the case of drunkenness as declared by the house of lords in the case director of public prosecution where the judgement stated that: if a person becomes truly insane because of excessive drinking, this insanity can be used as a complete defence against criminal charges. This means that if someone is proven to be insane due to alcohol, they might not be help responsible for their crime, just as if their insanity was caused by something else. However just being drunk and acting more violent or recklessly does not mean the person can avoid responsibility, the law assumes that people intent the natural consequences of their actions, even if they were drunk when the crime was committed. The judgement also makes a distinction between two defences. Firstly, true insanity from drinking, the fact that the excessive alcohol has led to actual insanity and this is treated as a valid defence, meaning the person may not be held responsible. On the other hand, temporary drunkenness is not a defence. If someone is drunk to the point where they cannot think clearly, but they are not insane, this does not excuse their actions. Just being drunk and losing control is not enough to escape responsibility and the person has to be genuinely insane for the defence to work. As provided in article 41 (1), intoxication shall not constitute a defence to any criminal charge. Ordinary intoxication does not excuse the commission of any criminal offence. An offender under the influence of alcohol derives no benefit from a disability voluntarily contracted and is regarded equally answerable to the law as if he had been sober at the time. Justification for this rule is that the law cannot allow a wrong act to be an excuse for another. Kenny says: "the gross negligence which has caused the fatal collision is punishable not only in a sober driver but also in a drunken one". He also says: "And if a man, when excited with liquor, stabs the old friend whom he never quarelled with when sober, or steals the picture which never attracted him before, it is no defence to say "it was the drink that did it". The Italian penal code imposes an increase of punishment in respect of crimes committed in a state of drunkenness but our law has not imposed such an aggravation. The general rule remains that intoxication is no excuse for crime. This is subject to exceptions as stated in article 34 (2). 2(a) Intoxication shall be a defence to any criminal charge if: "**the person charged at the time of the act or omission complained of was incapable of understanding or volition and the state of intoxication was caused without his consent by the malicious or negligent act of another person.** This means that intoxication only affords a complete defence when it is purely accidental, provided that by reason of such intoxication, the accused was incapable of understanding or volition. This means that if a man is without his consent, made so drunk as to be incapable of distinguishing right from wrong, or to know what he is doing he will not be liable to punishment for any offence committed by him under the influence of such intoxication. Therefore these 2 conditions must be satisfied in order to exclude responsibility. Intoxication must be purely accidental and must also be complete, to the point that the person incapable of understanding or volition. The latter is crucial for even though in a situation where the agent was drunk and drunkenness was accidental but he was still capable of controlling his conduct, of knowing and understanding what he was doing wrong, the drunkenness will not afford him any defence. 2(b) Intoxication shall also be a defence to any criminal charge if the person charged was by reason of intoxication insane, temporarily or otherwise, at the time of such act or omission. This exception is where at the time of committing the act or making such omission, the accused was by reason of such intoxication insane, temporarily or otherwise , to such extent as to be incapable of knowing that such act or omission was wrong, not knowing that what he was doing was wrong. In this case it is immaterial whether drunkenness was voluntary or involuntary. A man is not liable to be punished for any offence perpetrated by him under the influence of insanity. A mad man is to be treated as such even though it Is only temporary. The "delirium tremens caused by drinking, if it produces such a degree of madness, although temporary, as to render a person incapable of distinguishing right from wrong, relieves him from criminal responsibility for an act committed by him whjile under its influence. The argument that insanity has originated from voluntary misconduct is clearly fallacious. Regard should properly be had to the time when the offence was committed, if at this time the agent was irresponsible by reason of his insanity, the original cause of such insanity is irrelevant for the purposes of criminal liability. Sub article (4) Intoxication shall be taken into account for the purpose of determining whether the person charged had formed any intention specific or otherwise, in the absence of which he would not be guilty of the offence. We have already seen that all wilful generally and exceptionally, require the concurrence of a wrongful intent and that some particular crimes require a specific intent. Now intoxication which so obscures the mind as to render a person incapable of forming the requisite generic or specific intent or which shows that he did not in fact form such intent, is a defence to the offence charged, it affords a defence to the actus reus, that no guilty state of mind existed. Thus, intoxication which does not avail the defendant undet the two exceptions, because it was not accidental and did not result in insanity, may yet afford him an answer to the offence charged by negativing the existence of the requisite intent without which there cannot be that offence. In these cases of the absence of intent as aforesaid, intoxication excludes liability for that particular offence charges, it does not however necessarily exempt the defendant from all liability. Example: A drunken man's inability to form specific intent to kill or put the life of another person in manifest jeopardy at the time of committing a homicide may in appropriate circumstances reduce his crime to the lesser offence of causing grevious bodily harm from which death ensues -- does not require specific wrongful intent or the offence of involuntary homicide -- which does not require any intent at all. All this applies to all mental or bodily conditions caused by the drinking of narcotics or excitin drugs. Intoxication is a relative term and therefore it is imperative when intoxication is pleaded as a defence for a criminal offence, the whole facts must be laid bare before the court. **[SELF DEFENCE]** In a justification scenario, you do not commit a crime. Section 223 when a homicide is "ordered or permitted by law" -- refers to the death penalty, of course when it was still permissible. Nowadays capital punishment has been repealed. This defence may apply when an individual commits a criminal act during an emergency in order to prevent greater harm from happening. This is written in section 223 of the criminal code. This states that no offence is committed when a homicide or bodily harm is ordered or permitted by law or by lawful authority or is imposed by actual necessity either in lawful self defence or in the lawful self defence of another person. The common sense basis of this justification is obvious -- everyone has a natural right to protect their own life and body. If someone attacks you and the police or state cant protect you in that moment, you have the right to defend yourself, even if that means using force. It is natural for people to fight back when they are attacked. Thomas hobbes said that no law can force you not to defend yourself and it is basic human instinct. Most laws around the world recognise this right , they allow you to use force to protect yourself or other people. The law understands that sometimes you need to act quickly to stay safe. Also, when people are forced to do things against their will because of threats or violence. For example if someone threatens to hurt you unless you do something bad , the law says its unfair to punish you because you were forced into it, you did not choose to do it so you should not be held responsible. Let us consider state of necessity state of necessity may arise where owing to an accident a man finds himself in the necessity in order to preserve himself, of injuring another person who is not guilty of any wrongful act towards him. 4 men having survived a shipwreck with no food or water, one is killed in order for debris to be fed off of. Self-defence on the other hand refers to a situation where a person uses force to protect themselves from an immediate threat of violence or aggression by another person. The person is responding to an unlawful attack against them or someone else. According to Article 223 of the CC, no crime is committed when a person acts lawfull in self-defence or in the defence of someone else when faced with a threat. The phrase "of actual necessity" is of great importance here. Article 224 (a) -- in the case of having an intruder at night, the person's assessment of the situation is different as is the level of apprehension. At night one does not have the luxury of seeing what is going on the law treats the defence here as one of actual necessity. Article 223 (b) -- the reference to threat and plunder -- here suggests a violent conduct in one's premises. Shooting an intruder simply because he is an intruder is not justified. The intruder has to commit theft coupled up with aggressiveness or violence. Here defence is justified when the person is not only stealing but creating a level of violence instilling fear of the person being robbed. Article 223 (c) -- deals with all the cases where one is acting in defence either in oneself, or of another in the case of sexual assault. But these three sub-articles raise the question of -- what establishes the threat? If one manages to prove that he acted due to self -- defence he will be completely exempt from criminal responsibility. In order to prove these defence the following conditions have to be fulfilled. Conditions of having a legitimate defense is that the evil with which one was threatened was **UNJUST, GRAVE AND INEVITABLE**. **UNJUST -** means that the threat is unlawful -- requirement fails here when threat was lawful commanded or permitted by law, a man who resists by force the police who proceed to his arrest. **GRAVE** - means that the act done to avoid consequences of which if occurred would have caused irreparable harm/evil -- law considers irreparable harm if harm threatens life or body or chastity of individual. The threat we speak of has to be serious. One cannot claim a defence on self-defence if the threat is frivolous. Mere interference with property will not justify a homicide or bodily harm. Such an interference would have to be violent in order for such a justification to arise -- there has to be a reasonable apprehension of danger to life or personal safety. **INEVITABLE -** must also be proven by accused that the evil couldn't be avoided. It must be shown that danger was **sudden, actual and absolute. SUDDEN**-- evil mustn't be anticipated thus one who knew that evil will be at a place and still goes, that isn't justifiable. If danger was anticipated with certainty a man will not be justified. **ACTUAL**--This means that the person being threatened at the moment in time the offence is commited, evil must be present and not one that passed. If someone broke in my house yesterday and the next day I see him in the street and kill him, that isn't justifiable. Or if aggressor walks away and agent acts while he is walking away, this does not constitute self-defence. It must also be **ABSOLUTE**-- means that the evil couldn't be avoided by any other means. Accused here must prove that he couldn't escape from threat formed by the aggressor. If all these elements are satisfied, person pleading self-defence would have a successful plea but in the absence of these, plea of legitimate defence would not be successful. If any of these elements are exceeded, ex- a person manages to prove actions were unjust and grave but not inevitable, excess of self-defence will exist. So in deciding whether there was actual necessity of self-defence the test should be subjective. The danger against which the accused reacted to should be viewed not necessarily as it was in truth and fact, but rather as he saw it in time. So if a person believes honestly and upon reasonable grounds that either his life or someone else's was in imminent peril and that his act was necessary for preservation, even though it wasn't, act is justified. However he must also show that action he rebutted is proportional to the action he suffered. This is known as the proportionality test. To have full justification the means to avoid evil must be proportionate. Person assaulted is not justified in using a firearm unless the assault is so violent as to make him believe that his life was actually in danger. A man who shoots the person who punched him cannot argue that he thought his life was in danger. Regard must also be had to the state of the mind of the victim of the aggression. Self- defence is a legal justification for actions that would otherwise be considered criminal, such as homicide or bodily harm. When someone acts in self-defence and meets all legal requirements they are considered justified in their actions. This means that even though person has committed what would normally be a criminal act, the law does not treat it as a crime because action was necessary to protect oneself or others from an immediate threat. So according to article 223, If a person acts in self, defence and the action is proportionate to the threat faced, then no criminal offence is considered to have been committed. The law fully justifies the action, meaning the person will not face criminal charges or punishment. The first few words of article 223 are "no offence is committed" so there is full justification. Excusability on the other hand comes into play when a person's reaction to a threat is somewhat understandable but not fully justified. In these cases, persons is held responsible but circumstances are such that law allows for a reduction in punishment. A person is guilty of a crime but severity of punishment is lessened because actions are considered excusable. Section 227 deals with these situations where a person's actions, although they constitute a crime, are excusable due to circumstances. Excusability is tackles under article 227. the crimes committed are less blameworthy than willful acts in ordinary cases. For instance, if someone overreacts in a self-defence situation by using excessive force they may lose full justification provided by article 224 but still receive a reduced punishment under section 227. Paragraph (d) of section 227 creates this safety net of 223 as when you overreact you are granted an excuse at law, so the reaction has to be proportionate to the threat -- "SHALL HAVE EXCEEDED THE LIMITS IMPOSED BY LAW" -- liable to imprisonment for a term not exceeding 12 years for wilful homicide. The cases in which a wilful homicide is deemed to be excusable are the following: **Sub articles of article 227 -- 227(A)** -- where it is provoked by grievous bodily harm, or by any crime whatsoever against the person, punishable with more than 1 year's imprisonment. Here, we have a loss of self- control as a result of provocation. One would not act in the same way as he/she does upon being provoked.Provocation results in loss of self-control due to strong emotions, namely anger. In order to claim this defence, one must claim that a reasonable man would have acted in the same way if provoked. **There are 3 notions** required for provocation as stated in the case Lee Chun Chuen -- these are the act of provocation, the loss of self control and the retaliation has to be proportionate to the provocation in question. It was held that a **4^th^ element** was also necessary which was the inexistence of a period of time long enough to allow for the cooling of the blood. For the accused to plead excusability he must prove that the provocation effected accused. This would lead to the loss of self-control as there must be mental excitement or agitation disabling someone from acting rationally. If the act of provocation did not have an effect on accused then exusability isn't allowed as stated in Pulizija vs George Camilleri. The act of provocation -- one must not only take into account the nature of provocatory act but also the offender's state of mental agitation. English law accepts words to be sufficient for the purposes of provocation but under maltese law position is not so clear cut. Article 227 ( c) does not specify which acts of provocation under a person acting in a sudden passion , incapable of reflecting. What the law requires is that a man of ordinary temperament would have been so affected. Loss of self control -In the cases of provocation, provocative act must have actually aroused a sudden passion or mental excitement and that a man of ordinary temperament would have been so uncontrollably agitated. Element of proportionality -- Retaliation must be proportionate to the provocation too. Under our law, a defence of provocation presupposes a degree of proportion between provocation and reaction. Reaction has to be proportionate to the sudden panic which is caused by the provocation so that it may be concluded that the accused's reaction was a result of the loss of self-control. Article 234 -- In virtue of this article , the proportionate reaction to the unjust provocation need not be committed against the person or property of the person provoking if by mistake or accident such reaction is committed to the prejudice of some other person other than against the person to whom it was intended. In such a case the defence excusability arising from provocation would equally subsit as if the crime had been committed to the detriment of the person against whom the act was intended. The law relating to provocation has developed on the basis that a homicide committed in sedate animo ( calm mind) should be distinguished from one committed in the heat of passion and anger. However even in anger some restrain is desirable and so the law seeks to restrict the type of homicide to which mitigation would be permitted by certain rules. Not all homicides committed in anger are eligible for mitigation. One of these rules being that procation must be grave and sudden so there is not a long so there isn't a long lapse of time between the provocative conduct and retaliation for the blood to cool -- the plea would not succeed for the obvious reason that It was premeditated. Article 235 of the CC -- " the provocations referred to in articles 227 shall not benefit the offender unless they have taken place at the time of the act. This article ought to be interpreted as meaning that the state of anger must still subsist at the time of reaction, the anger must still be present when person commits act of retaliation. **227 (B) --** where it is committed in repelling, during the day time, the scaling or breaking of enclosures, walls, or the entrance of any house or inhabited apartment. The crucial notion here is the day time. Homicide is justifiable during the night but in the day it is excusable.How you would react in the day time is different than the night. Distinction with that of article 224 (a) where homicide is considered to be justifiable and not excusable. The raison d'etre for such a basic distinction is that during the night time iit is much more difficult to obtain assistance than during the day time.Moreover fright and alarm as well as immediate apprehension of personal danger are much greater during the night time. **227 (C) --Crime of sudden passion -** where it is committed by any person acting under the first transport of sudden passion or mental excitement in consequence of which he is, in the act of committing the crime, incapable of reflecting. Offender shall be deemed to be incapable of reflecting whenever, in cases of provocation, the homicide is attributable to heat of blood and not to a deliberate intention to kill or to cause serious injury to the person, and the cause be such as would, in persons of ordinary temperament, commonly produce the effect of rendering them incapable of reflecting on the consequences of the crime. In order for this crime to be excused it must satisfy that 1.The person is acting under the first transport of sudden passion or mental excitement -- Refers to the first time you feel this way, passion can be understood as anger and mental excitement refers to agitation. 2.As a consequence, whilst committing the crime, he is incapable of reflecting as a result of the heat of the blood. It is imperative that according to law this transport of anger and agitation is of a certain level that it produces the effect of rendering you incapable of understanding the consequences of your actions. One loses his self control and as a result he fails to see the natural consequences of his actions. 3.A person of ordinary temperament would have also been seized of the capability to reflect given the same circumstances -- ordinary temperament refers to the reasonable man. When we speak of the reasonable man we refer to the concept of the bonus paterfamilias, who under roman law, is the good and responsible head of the family. A person of ordinary temperament in this situation would also have lost his self-control in a situation of sudden passion. **The test here is whether provocation was sufficient to deprive a reasonable man of ordinary temperament of his self- control not whether it was sufficient to deprive the person charged of his self-control**. There is an element of subjectivity here and not all persons possess the same values and level of education or upbringing. Social background needs to be taken into consideration and only then will courts proceed to examine what a person of ordinary temperament is. Glanville Williams states that provocation is governed by objective test and subjective test -- that is did the accused act under provocation or not? Although law does not mention the means by which person may be provoked, there are two particular tests which must be carried out. The subjective test -- is used to see whether the provocatory act has aroused in the accused such passion as had led him to react and the person must have lost self control other wise if provocation was not necessary then homicide is not excusable. The ordinary test is used to see whether a person of ordinary temperament would have reacted to such provocation in such a manner. Here temper of the reasonable man must be considered and this is important as a hot-tempered individual who is provoked by anything cannot plead excusability. Regarding assessing the reasonable man, courts would react in same as accused reacted in particular moment which is an objective approach. On another hand -- courts need to assess subjective factors such as the upbringing of the accused. This objectivity/subjectivity was taken into account in the George Camilleri Case. In this situation accused is punished between 5 to 20 years imprisonment. **227 (D)-** the last case is where it is committed by any person who acting under the circumstances mentioned in article 223 shall have exceeded the limits imposed by law, by the authority, or by necessity. You act disproportionately to the threat -- if so you move away from article 223 and fall under 227 (d). If you show that the ovvereaction was fear or fright or taken unaware then excuse remains but you will not be punished. Remains in article 227 -- found guilty but not punished. Homicide is also excusable according to article 245 in cases of infanticide. Article 227(d) also mentions a situation where homicide is excusable where it is committed by any person who shall have exceeded the limits imposed by law, by the authority or by necessity. Article 223 provides situations when homicide is justifiable but one must still stay within the limits. This is done to strengthen the fact that one should only resort to homicide when it Is truly the option. Judgement tackling this article is republika ta' malta vs Raymond camileri in 2007. Victim punched accused in the face and in a fit of anger accused shot victim who died as a result. He was found guilty but court said his actions are excusable as he acted in self- defence but went beyond the limits. Punishment for offender here is imprisonment not exceeding 12 years. Article 229 gives some more information on what amounts to excusability. The excuses referred to in article 227 are not acceptable when passion is provoked by 1. correction of accused, where 2. passion is provoked by lawful performance by lawful performance of duty of public officer and even when offender uses 3. provocation as excuse to kill or harm or when he tried to kill or harm before provocation occurred. In pulizija vs Philip muscat -- court dismissed accused's plea that was provoked as he himself stirred provocation. Final instance of excusable homicide is in case of infanticide -- Article 245. Infanticide is not punished as greviously as wilful homicide. Nigel walker points out that from a physiatric point of vide, infanticide is one of the possible manifestations of the mental disorders to which some women succumb after giving birth. Not all infanticides are committed in disordered states of minds. Can be infanticide by omission -- neglecting to do such things connected with the continuance of the life of the child ( to feed it, to remove any obstacle for it to breath) or infanticide by commission -- performance of any act against a live-born child which prevents it from living. The conditions of this article are : 1. The child must be the child of that mother, 2. Child must be under age of 12 months and 3.at time of act or omission, the mother must not have fully recovered from the effects of giving birth to that child, balance of her mind must have been disturbed by reason of effects of lactation.. Puerpal intention -- prof guido de marco. **[ATTEMPTS]** An attempt is when you try and fail. When speaking generally, two elements are essential to constitute a crime, the mens rea and the actus reus. Though the whole actus reus is necessary, there may be a criminal offence even where the whole of the particular actus reus that was intended has not been consummated. A situation where a crime has not yet been committed and the person who has attempted the crime is still punished. A criminal attempt is when someone has tried and failed and the theory of it has one specific aim, that of establishing criminal responsibility in situations where a crime has not been yet consummated. Important principle in our law because in virtue of this principles you can be held criminally responsible even when a crime has not been completed. Trying alone constitutes punishment What is difficult when it comes to attempt is trying to distinguish the moment in time which you become responsible for your actions. Criminal attempts are tackled in article 41 of the Maltese criminal code and it makes it very clear as to the moment in which you are found guilty of an attempt. An attempted offence occurs when one manifests his/her intention by overt acts. These acts would be preparatory acts, which are then to be followed by a commencement of the execution of the crime. One is not punished in the case of preparatory acts so therefore there has to be commencement of execution for one to be held criminally liable for an attempt. The three elements are essential to constitute a criminal attempt: an overt act manifesting the intent to commit a crime, the commencement of the execution of the crime and the non-completion of the crime by reason of accidental circumstance independent of the will of the offender. Analaysing the overt acts Every wilful crime has its first origin in the mind of the delinquent but no man can be punished only for his guilty mind, the guilty mind by itself does not give rise to criminal liability, so the intent needs to manifested itself in overt acts which proclaim his guilt. There must be some external, overt act done but at the same time such act must be done with intent to commit crime. The existence of this intent is of the very essence of the attempt. The act in itself may be perfectly innocent, but it is deemed to be criminal by reason of the purpose with which it is done. The act must manifest a clear, specific intent to commit a crime. It is necessary to show that the agent had formed an intention to commit a specific crime so that no doubt remains as to the crime which he had contemplated. In the judgement of Il-Pulizija vs Domenico Briggs -- the court confirmed that the absence of specific intent from overt acts leaves no cause for criminal liability. Analysing commencement of the execution of the crime Every intentional crime consists of 4 stages, the intention, preparation, attempt and completion. It is not every manifestation of this criminal intent by an overt act that makes a man guilty as some overt acts may be merely preparatory. Law requires that such an overt act should be followed by a commencement of the execution of the intended crime. Although every attempt is an act done with intent to commit a crime, the converse is not true, not every act done with this intent is an attempt for it may be too remote from the commission of the crime.. This distinction between acts of preparation and acts of execution is of fundamental importance in the theory of criminal attempts. Such distinction is often most difficult. The biggest problem we have in trying to establish what is a criminal intent is how to distinguish from preparatory acts from the commencement of the execution of the crime. How are we to draw the line which separates immunity from guilt? What is the distinction between preparing to commit a crime and attempting to commit it?How far may a man go along the path of his criminal intent and yet be safe if the occasion fails him? We require jurists to help us here and we look at the theories of Carrara. The first theory of Carrara The theory of ambiguity or unambiguity. His theory distinguished between preparatory acts and attempt on the basis of the ambigious or unambiguity of the character of the act itself. His principal focus is at looking at how clear one's acts are to determine how innocent/his acts are. An act which is in itself and on the face of it innocent cant be an act of execution however it can be an act of preparation. Preperation acts may either be conditional or absolutely preparatory. In the case of the absolute preparatory acts, they are those acts from which the character of the commenecement of the execution of the crime is absolutely absent, these are innocent actions that when looked at on their own, do not show any clear intent to start a crime. These actions do not put the law or anyone's rights in real danger. Therefore, even if such an act was directed to the commission of the crime, one cannot be punished for it since they haven't crossed the line into actually attempting the crime. Conditional preparatory acts can still be preparatory but in some cases they become execution of the crime. Acts are considered to be conditional when with reference to the particular intent of the agent, they represent a commencement of execution and begin to expose rights of others to danger but must nevertheless be considered preparatory in view of their ambigious character and are allowed to go unpunished because it is not certain they were directed to the crime's commission. If they are accompanied by such material circumstances to manifest their undoubted direction to the commission of a particular crime, they can be rightly punished as attempt. So the absolute preparatory are innoce nt acts that do not raise any suspicion whilst conditional preparatory raise some suspicion but remain ambigious. In the case of conditional, there still remains uncertainty as to whether action is being done in furtherance of a crime because there are a lot of gaps. This theory is very subjective and relies a lot of opinion and subjectivity which is a bad thing in court as you will end up in difficult arguments to no end. Theory was inadequate with regards to practical application so it was abandoned by carrara himself an dhe gave us a second theory. Second theory of Carrara In this theory, instead of using the ambiguity and unambiguity of one's actions , carrara identified 4 things or persons. First we have the primary active subject which is the offenders, the secondary active subject which is the means or instrument used to commit the act, the passive subject of the attempt -- this is the violation of rights, represents all persons and things against whom and against which violence is used. The violence or violation of rights do not constitute consummation of offence in this case but were necessary and had to occur in order for offenders to commit the offence. The last one is the passive subject of the consummated offence -- the persons or things against who violence Is exercised but this time constitutes consummation of offence. Preparatory acts are those acts which extinguish themselves or stop with the primary active subject and the secondary active subject of the crime. In principle, carrara has distinguished 4 subjects whereby if act is within the first two then you have an act of preparation, if it falls on the third or fourth you have an attempt or consummated crime. By illustrating this theory, carrara takes the case of a man who with the intent of committing the rape of a girl has broken down the door of the house and gagged the maid. These acts constitute an attempt in as much as the offender has already committed a violation of the rights of others. This theory still does not solve all our problems. All it is saying is that if your actions stop with the first and the second it is preparatory , you are preparing yourself. Therefore if my actions stop there I am still in preparatory stage. Third stage -- I am violating, attacking, exercising violence against something or someone. Violation against something or someone does not necessarily constitute my intended consummated crime because my intent was to rob the bank not to shoot at the door of the bank. Therefore I have committed a violent act that does not constitute my intended crime however the violent act was necessart for me to commit the crime. Here we are speaking of attempt. The fourth stage -- When I violate the law and I exercise violence against something or someone which now constitutes the intended crime. Even though mere preparatory acts cannot be punished as an attempt for the crime of the commission of which they were intended, some acts done may constitute in themselves an offence, sui generis, meaning they are unique or in a category by themselves as we see in the judgement Il-pulizija vs Henry Albert Pace. For example possessing illegal weapons, making counterfeit money. This is an objective theory which creates identifiable persons or things and creates structure which can be applied practically to every single offence. This theory may fail but it is rare and in that case common sense and logic needs to be applied. So that a man can be held liable for only an attempt it is essential that the intended crime should not have been already completed. A crime may be incomplete either because it is interrupted or frustrated by accidental circumstances independent of the will of the offender or because of voluntary desistance of the offender not to complete it. Only the former case that the commencement of the execution is punishable as an attempt. Is there a distinction between when the offender himself decides not to go through with it and when something goes wrong and does not go through with it. Under our law if you voluntarily resist committing the crime, you are not punished for the attempt. However, when the offender has done everything in his power to complete his criminal purpose which was frustrated by some accidental cause independent of his will, he is still held responsible. According to the law these circumstances have to be both accidental and independent of the will of the offender. These accidental causes which prevent the commission of the crime may either be physical or moral, hearing a siren or physically resisting to stop. Voluntary desistance In this principle, the desistance has to be voluntary and the decision has to come from within meaning you must be the one to decide not to continue. A man who voluntarily gives up the criminal action even though he could have accomplished it. If a crime is not completed owing to the voluntary desistance of the offender, then he is not liable to punishment as for an attempt but he is only liable for the acts already committed by him in so far as such acts are characterised by the law as a crime. There is a judicial reason as well as a reason for public expediency for the impunity of the attempt in such cases. The judicial reason the will to commit a crime, which is of the essence of a criminal attempt, is negatived by a contrary determination of the same will of the agent at a time when no actual damage or injury has been caused. Public expediency It is in the general interest of the community and the victim himself that the would-be offender should be encouraged by the prospect of impunity to desist from the further commission of the crime. Law does not require desistance to be absolutely spontaneous (refers to being on your own accord). This does not need to be a process entirely personal to you and the decision to desist may come as a result of convincing or being spoken to. The law is simply satisified if desistance is voluntary, if the determination of the agent to to proceed with commission of crime is made freely by him and not imposed upon him by external agencies independent of his will. This concept includes both the forebearance of the agent from doing further acts of execution of crime as well as counteraction of agent, to undo acts already done or prevent their effects. If agent has done the act or whole series of acts which would normally consummate crime, but has been prevented by an accidental cause independent of his will, one can no longer speak of desistance. Voluntary desistance also has to be distinguished from a case where you are frustrated as here you do not have a change of heart. If you would have continued in your course of action but you could not, it is not voluntary desistance. For example an emotional cause, you decide not to continue because you are going to get caught -- a siren. Therefore one must make a distinction. Voluntary desistance which involves a change of heart vs instances of frustration which impede you from committing the crime but had there would not have been this, you would have continued and your intent would have remained the same. For it to be a truly frustrating cause, it has to be extraneous to you (accidental) and independent of your will, with voluntary desistance there is a change of heart. If you voluntary desist, are you punished? In this case, an attempt has happened but our law requires that you are not punished because law wants to give an incentive for offenders to stop. Voluntary desistance removes liability for punishment in respect of attempt but if acts already done constitute a crime in themselves, agent is liable to punishment provided for such a crime. In the case of being frustrated, you are still punished for attempt you have started -- confirmed in the judgement il -pulizija vs Salvatore grech. Prior to Andrew jameson, when completion of crime didn't occur due to voluntarily deisistance of offender punishment was reduced by two to three degrees. Doctrine of carmigiani who said that voluntary desistance , punishment for attempt should be reduced not excluded, jameson criticised this by arguing that it is contrary to what law stands for to encourage the offender to complete crime immediately thus increasing his chance to escap as he only risks slight increase of punishment. Jameson suggested this part of the article be substituted by "when the offence does not take place owing to the voluntary desistance of the offender he shall suffer the punishment for the acts already committed by him in so far as these are characterised by the law as offences". There has to be an incentive for one to desist. Law is simply satisfied if desistance is voluntary or if determination of agent not to execute commission of crime was made freely by him and the law grants exemption from punishment regarding situations where the attempt is abandoned by the agent himself. When the agent desists it usually derives from fear of punishment, good advice from third party or a sudden pity for the victim. Voluntary desistance includes restraint from agent not to continue the commencement of the execution and also the counter-action of the agent to undo acts already done. Example: A after poisoning B's food with intent to kill, voluntarily prevents B from eating the food. Impossible attempt Can there be a punishable attempt when the act done with intent to commit a crime is of such nature that completion of crime is impossible? The principle here is that in order to be an attempt, there must be a possibility of a successful issue and every crime must have the potentiality of fruition. The subjective view This school of thought holds that every attempt is punishable even if the completion of the crime by the means used was impossible. A man who has formed the intent to commit the crime but also manifested such intent by external acts and has indeed commenced execution of crime by means which he thought efficient and sufficient for the purpose, deserves to be punished even though, without him knowing it, such means were in fact inefficient and insufficient. The agent has done everything which he thought necessary to accomplish is criminal purpose. The objective view Writers of this view argue that acts which in their nature cannot result in any harm are not mischevious either in their tendency or in their results and hence should not be treated as crimes. In the case of attempts, law punishes not the intent but the action and such action cannot be punished except if it has exposed the rights of others to actual danger. An effort to expose danger which is impossible to achieve by reason of the means used cannot produce any actual danger. However the inefficiency of the means must be absolute in order to exclude criminal liability. Carrara makes a distinction between relative and absolute inefficiency. Relative inefficiency When the means used were not capable of completing intended crime owing to particular conditions of person or things against whom or upon criminal action was directed or owing to different circumstances surrounding the fact. We understand that on the date and time in which you used the means, the means failed you but had the circumstances been different the means would have succeeded in achieving the agent's goal.The crime could have been completed if actions were used against another person or another thing, or if they were accompanied by different circumstances. Example of healthy man. Absolute inefficiency When the means used could in NO CIRCUMSTANCES expose rights to danger whoever or whichever person or thing against whom or upon they were directed. In this case criminal liability does not arise no matter how much agent may have believed he could have carried out his actions by those means. It is not the intention, however mischevious, but the mischevious tendency of the overt act done in pursuance of such intention. Domestically, the latter is used though with the condition that means used must be absolute and not relative and for you to be punished we are understanding that crime could have been completed. Absolute such as intending to poison someone but instead putting food colouring instead of poison but relative inefficiency is when the same means are used in different circumstances. Poisoning another with lethal substance but due to his strong health no effect was achieved, but if someone was weak he would have died then this is relative inefficiency and this is punishable. This principle of non-liability extends to all cases in which completion of crime Is absolutely impossible because object of crime (person or thing against whom action is directed Is inexistent) or legal obstacle prevents completion of crime (attempts to steal something which was already his, and he did not know it. (LEGAL IMPOSSIBILITY). IMP the idea of \"**commencement of execution**\" means that a person has started actually trying to commit a crime, not just planning or preparing for it. However, for it to count as the beginning of a crime, the action they take must be something that could realistically lead to the crime happening if they kept going. If what they do couldn\'t possibly result in the crime being committed, then it doesn\'t count as starting the crime. For most crimes, you can be guilty of an \"attempt\" if you try to commit the crime but don\'t succeed. However, this doesn\'t apply to crimes that happen due to negligence or by accident. You can\'t be guilty of \"attempting\" a negligent crime because \"attempt\" means you were trying to achieve a specific result. The essence of an involuntary or negligenct crime is incompatible with the definition "with intent to commit crime". It is true that the in the crime of negligence there exists a voluntary act or omission but this is done or made without any intention or desire to produce such event. Negligent crimes, by definition, aren\'t about trying to cause harm---they happen because someone wasn\'t careful enough. If someone\'s negligence doesn\'t cause any harm, they might still be punished for being negligent, but not for \"attempting\" to commit another crime. When it comes to **crimes committed in the heat of sudden passion**, there are two main views: **View A** suggests that when someone acts out of sudden passion or strong emotion, their mind is so disturbed that they can\'t form a clear intention to commit a specific crime. For example, to be guilty of attempted murder, it must be clear that the person intended to cause death. But when someone acts impulsively in the heat of the moment, it\'s hard to prove they had a specific intent like murder; they might have just intended to cause harm. In such cases, it\'s argued that the person couldn\'t carefully plan or choose their actions---they just acted without thinking. View B takes a different approach. It argues that whether someone had a specific criminal intent, even in a moment of sudden passion, should be decided based on the evidence in each case. It acknowledges that proving intent is challenging, but not impossible. If the evidence shows that, despite their emotional state, the person clearly aimed to commit a particular crime, they can be found guilty of attempting that crime. **Crimes of omissions** principle that there cannot be a criminal attempt unless there has been a **commencement of the execution of the crime must not be understood as a meaning that an act of omission** cannot constitute an attempt. Inaction could be a means of accomplishing a criminal intent, the person who maliciously abstains from doing those acts which alone can prevent the crime. If by an accident independent of will of agent, crime doesn't occur, he or she is guilty of attempt. The concept of \"attempt\" only makes sense for crimes that involve a series of actions or steps. For these crimes, you can be guilty of an attempt if you start the process but don\'t finish it. **Simple Crimes:** For crimes that are completed as soon as you start them, there\'s no room for an \"attempt\" because the crime is already done as soon as you begin. You can\'t \"attempt\" these kinds of crimes because they\'re either fully committed or not at all. **Material Crimes:** Only crimes that involve a physical act or result (like theft or assault) can be \"attempted.\" Crimes that are more abstract or don\'t require a series of actions can\'t be attempted in the same way. **Contraventions:** The law specifically says that attempts to commit minor offenses (called contraventions) aren\'t punishable unless there\'s a special rule saying they are.In summary, you can only be charged with an \"attempt\" for crimes that involve multiple steps or actions. For simple, immediate crimes, or minor offenses, the idea of an \"attempt\" often doesn\'t apply. Offences also cannot be attempted, these are : negligent and involuntary crimes , here there is no mens rea so it is impossible to attempt an involuntary offence, simple crimes -- crimes executed by a single act, contraventions -- attempts of contraventions aren't punished unless law stipulated otherwise. Crimes of omission -- it is also difficult to have , since here actus reus of offender is not doing something so it is difficult to commit overt acts to show intention of not doing something. However in a type of situation where prison warden intents on killing prisoner by not giving him food , here warden is guilty of attempted homicide although the crime is actually one of omission. Punishment of attempts is the punishment for the act If it was completed reduced by one or two degrees. Acts of commencement of the execution are those which are applied on the passive subject of the attempt**. In pulizija vs Ruggier Camilleri** he was accused of attempted theft of fuel tanks -- he had already moved them when he was interrupted so offence wasn't completed. However court ruled that he was guilty since he had already moved tanks, the acts applied on the passive subject of attempt. **[COMPLICITY ]** There are certain offences which by their very nature cannot be committed without the concurrence or participation of two or more persons such as conspiracy or adultery. Quite apart from these offences it often happens that an offence could be committed by a single person, but is the product of the joint activity of two or mo re persons. Complicity is when you have a **plurality of persons coming together to commit a crime and who do not all materially execute the crime together**. It is important to note that the accomplice e cannot be the one who materially executes the act because in that case he would become the principle. In the theory of complicity you are extending the responsibility from the principal's actions to the accomplice. Our criminal code recognises two ways of taking part in an offence that is either as a principal or as an accomplice and one needs to distinguish these two persons apart. The **principal is the person who actually perpetrates the offence, the person who is the perpetrator of the act.** Almost always he is the man by whom this act itself is committed but occasionally he is not so. For example act may have been committed by the hand of an innocent agent, a child under nine years.. In such a case man who employs innocent agent is the real offender. You can also have a multidate of principles, whereby they would become co-principals**. The accomplice are all the other persons who are in the crime and in any manner have assisted the commission of the crime but have not materially executed the crime themselves.** In any crime, the main person responsibl e is the one who both wanted to commit the crime and who actually did it. However, when multiple people are involved in the same crime, each person can be held responsible if they meet certain conditions. So if there are several people involved, each one must have played a role that makes them legally responsible for the crime**.** The general rules to all forms of participation in an offence has to show that the two or more persons participating in the offence must be shown 1.to have intended and willed the same offence and 2.has both done something towards committing it. When this is shown, the punishment is not divided but it is multiplied for although there is objectively one offence, yet this is subjectively multiple, it reproduces itself in respect of each of the parties. The punishment for complicity is not divided but it is multiplied, It multiplies the punishment by the number of people involved in the crime even though they would not all have been materially involved themselves. For an individual to be found guilty of the offence, the two elements of the principle of complicity must be proven.. The whole concept of complicity is that there are separate and numerous individuals who can be involved in the commission of the crime, they all ought to be punished for their involvement. Article 43 holds that accomplices are liable to the same punishment. However the law has to apply with respect to each individual , each individual must answer for his own actions within the context of that offence. Degree of guilt of each of the parties may vary by reason of the circumstances of the offence and is to be determined independently of that of the others engaged in the same offence. The law doesn't automatically punish the main criminal (the principal) a nd the helper (the accomplice) differently just because of their roles. What creates a distinction is one's level of participation in the crime. Article 46 also provides that trial and punishment of accomplice is independent of the principal. We may draw the **two following principles** which form the basis of the whole doctrine -- **concursus delinquentium** -the first being that **a man may be held responsible for an offence even though he may not have done the act which constitutes that offence, if he had done some other act which : has helped towards the commission of the offence and had done the act in pursuance of a common design to commit the offence**. The second being each of the **parties to an offence is liable to punishment in respect of that offence but only in proportion to his individual guilt. Common design is confirmed as an essential element of complicity as was confirmed in the judgement -- il pulizija vs Carmelo agius.** The next most fundamental point Is what links the principle and the accomplices together: a man can be said to have concurred in any offence only if he has willed and intended the offence and has don e something towards its commission. These principles apply to each of the parties who aided in the offence. **There cannot be a concursus delinquentium without a common design to commit a specific offence and it is what links them together.** General principal to an individual: The general principle that a man is responsible for an offence only if the act was (1) voluntarily and (2) knowingly committed by him, and it applies to each of the parties of the offence. It is not only important that you aided the crime, which is the most obvious element to fulfil but that you have had a positive impact on the principal for him to commit the crime. This the common design. Therefore, A mere participation in the act without a participation in the criminal design cannot be the ground of criminal liability. In other words, no matter how effectively the act of a person helped in the commission of an offence, he is not responsible unless it can be shown that he did act with the common design and with the purpose of assisting the commission of the offence. Thus, if a man does an innocent act of which another takes advantage to commit an offence, that man does not in any legal sense participate in the offence. The common design is the common intent which both the principle and the accomplice have so when the accomplice helps the principal he is doing it knowingly. The accomplice has acted in furtherance of that common design to commit the crime. It is when the accomplice has facilitated the principle both morally or physically , provided that he has acted in furtherance of the common design, the principle of complicity kicks in. Common design is essential even though it is not written in the law. The requirement of a common design among parties raises the question where there can be true criminal participation in involuntary offences and offences committed from sudden passion or under mental excitement. Again it is not only important that you aided the crime, which is the most obvious element to fulfil -- that you have had a positive impact on the principal for him to commit the crime. Mere manifestation of criminal intent without some active proceeding to cause it to be carried out does not amount to criminal participation. A defendant charged as an accomplice needs to prove he has done something in furtherance of a common purpose, procure incite or in some other way as specified by law encourage or assist in the act done by the principal. In order that it may be said that a man has concurred in an offence committed by another it is necessary that he has done some effort for the offence to be committed, that a causal connection can be traced between such an effort and the commission of the offence. From this it follows that we cannot have negative participation. Negative participation/negative complicity is inconceivable. The essence of participation lies in the active co-operation between the parties and no man cannot be the cause of anything which he did nothing to bring about. The law cannot punish someone for their inaction -- in this case attitude towards crime is purely negative for individual did nothing to aid or encourage it. It must be noted however that there are some cases in which to do nothing to prevent the commission of an offence is in itself an offence treated by law. But outside such cases where the law expressly imposes a requirement to help prevent commission of a crime, mere inaction cannot amount to an offence. However, the notion of Negative complicity must not be confused with that of complicity by negative acts of omission -- which create a state of things facilitating commission of an offence -- doesn't close door to let people come in and steal. It is also important to note that concurrence after the fact is impossible. All that happens after the fact cannot be the cause of thereof. Such acts cannot in themselves be considered as a participation in complicity however they be made punishable by law as offences sui generis but it would be absurd to regard them as forms of accession to a crime. Example: If someone helps to hide stolen goods after a burglary, their actions, although related to the crime, occurred after the crime was completed. Thus, they cannot be considered an accomplice to the burglary itself. Another rule to complicity is that participation in an offence cannot be punished unless an offence has been in fact committed. It does not matter whether the offence has been completed or has merely reached the stage of an attempt. But it is necessary that the result of a common design and the joint effort should be something in itself criminal and punishable at least as an attempt in order that several persons concerned may be held co-responsible. Complicity presupposes completion of a crime. **So now having established the principle of common design -- that it has to be present , in what manner can you assist a principle in committing a crime?** The law identifies both physical and moral participation modes of assistance. **Moral participation as an accomplice** this consists of words which create or encourage another person's intention and determination to commit an offence. 42 (a) is the first and most direct mode of this which is by giving a command and the acceptance. In this situation, the law does not specify any gift, of course money element is easier to use as evidence. The hiring of another person -- the principal to commit the offence on behalf of the interest of the procurer. This is termed as a mandatum and the three elements are -- the 1.order, offer or proposal, 2.the acceptance and the 3.execution. It is immaterial whether the acceptance is gratuitous or for a reward, what is essential is that there was an agreement and if the order or proposal is not accepted, no complicity can arise. The relationship between order and proposal must be continued -- so can you withdraw the command at any time and will the accomplice still be responsible? **Scenario 1** -- person who ordered to carry out act but carries it out anyway later without informing accomplice. He is solely responsible in this case for no connection as of cause and effect would exist in each case and in the theory of complicity such causal connection is essential to impose on the accomplice joint liability, if principal is not acting under command of accomplice he is acting alone. **Scenario 2** Person commanded does not execute offence the principal is not liable to any punishment for the simple reason that there cannot be any question of complicity where no offence has been committed or at least attempted. **Scenario 3 The person gives the command counters the command** If accomplice repents and countermands his order , principal notwithstanding commits the offence, he will not be accomplice. Therefore you can counter a command but for him not to be considered an accomplice certain conditions have to be fulfilled. **The withdrawal of the order requires two elements** -- 1.it must be brought to the attention of the principle and if for any cause the principal remains unaware of revocation of order, this will not avail procurer. 2. **Second element** -- notice of the counter manding of the order must reach the principle in good time for him to stop his actions -original contriver remains responsible if such notice is given to principle too late because he has already committed the crime. Another scenario would be if he physically goes to the crime scene and stops it from happening. In cases where one cannot contact principle -- there has to be proven that he has stopped commission of offence. In cases like this the accomplice will also benefit from the resistance of the principal -- because no actual crime has been committed and you cannot be punished for intent alone. Voluntary desistance will not only benefit one but the other. May also happen that person engaged to commit the offence is unable to do so and so engages a third party to do it -- by doing so the former becomes the mandant and an accomplice. **Moral participation --Article 42 (b) --the second** form of complicity by moral participation consists according to our law, in instigating (instigation) the act of the principal by means of gifts, threats, abuse of authority or power. These are all means which in the eye of the law are calculated to foster in the person instigated the will to commit the offence and to supply the necessary impulse for so doing by overcoming the natural repugnance which everyone feels to wrong-doing and to consequent punishment. Mere instigation unaccompanied by any of these circumstances is not sufficient to constitute this form of complicity. In instigating, law requires that this must be pushed by bribes, promises and threats.Input of accomplice has to be determinate and it has to be shown that without your intervention, principal wouldn't have acted. The accomplice places the idea to commit a crime in the principal's head. The law requires something in furtherance, you say something and for it to be considered instigiation, it has to be followed by something such as threat or bribery. A general rule when dealing with threats or a reward , jurists always tell us that this has to be efficient meaning that it must yield desired result. The reward must be capable of fruition and a threat must have effect. Prosecution will have to prove that you introduced the subject to the principal and followed it up with one of these elements and that your bribe or threat was efficient and determinate ( it was the reason why the principal committed the crime. Analysis of types of instigations: Promises A promise is only considered valid if the promisor actually has the ability to fulfil it.If someone promises something that they clearly cannot deliver, it doesn't count as a real promise, hence it cannot influence one's actions. So if a person commits a crime after hearing such promise, its because they decided to do it on their own not because they were instigated by such a promise. Threats the apprehension of the evil threatened must be real: If person making threat has clearly no way to carry it out then its not likely to scare or influence anyone. If crime is committed in response to such a threat , person would have acted alone not because they were genuinely afraid of such a threat. Threats of personal violence or of death, may constitute such moral coercion as to excuse doer of the act from all liability. Abuse of authority or power obedience to superior orders may afford a defence. **Incitation** Article 42 ( e ) incites the determination of another to commit a crime or promises to give assistance, air or reward after the fact. Difference between **article b and e** the principal already had the intent to commit the crime but you strengthened his determination/will to commit it. The process of incitement or strengthening the will, the principle already has intent to commit the crime but lacks emotional strength to go through with it. You strengthen his will to go through with it, assist him emotionally and this involvement must be material and impactful and efficient such that had accomplice had said nothing he would have not committed the crime.In other words, without the strengthening of the will, principal would have never committed crime. Substantial difference between inducement to commit a crime and the incitement or strengthening will of offender. In the case of inducement, it is assumed that the idea to commit the crime is the effect of the inducement but in the case of incitement it is assumed that the idea to commit the crime is already in offender's mind but lacks the courage to carry it out and someone strengthens his will.. Promise of help to be given after the fact A principal of criminal jurisprudent that no one can become an accomplice in a crime after the perpetration of the crime. But if before the fact a promise is made of some help to be given after the fact, then that promise becomes a form of complicity because it encourages principle to commit it. I can become an accomplice if I offer you assistance after the crime but it has to be promised prior. Without this promise, principal would have been too scared to commit crime making me a determinate factor. If no promise was made prior to execution of crime, there could not have been a common design if the crime is already committed. In the definitions of complicity so far considered, the law does not make any use of such words such as "knowingly" and "maliciously" to denote that the modes of moral participation must proceed from a wrongful intent on the part of the accomplice. The general principle that no one is liable for any offence unless he intended the same also applies to accomplices. Above all you cannot conceivably order or instigate or incite a man to commit an offence unless you have the intention that it shall be committed. **Physical participation as an accomplice** The performance of physical acts which materially assist in or facilitate the perpetration or execution or completion of offence. Essential conditions common to this form of complicity: 1**.the accomplice should be conscious of the offence contemplated by the principal and have the intention of assisting him in committing it.** 2.**The accomplice should have done some act in furtherance of the common design which he shares with the principal** and 3. **that the act of the accomplice has in fact helped the commission of that offence. Article 42 (c )** A person who procures to another the means with which to commit an offence clearly contributes materially to the carrying out of the common design. Procurement of means is not by itself sufficient to constitute complicity Must also be followed by two other conditions these being: 1.**The means should have been procured with the knowledge that they were to be used for the commission of an offence**, the act of a man who is unaware of the criminal intent or purpose of another, provides him with means, does not make that man an accomplice. Guilty knowledge must be proven. And the second condition **that the means have in fact been used.** This is a key feature. **Scenarios of procurement of means** If A gives B a gun to kill C but B stabs him instead while keeping gun in his pocket. In this case weapon can be assumed to have been used , a weapon can produce result indirectly. Efficient result cannot be limited to the fact that weapon produced the result only directly. The weapon is offering some use, maybe a plan b and for this fact alone it helps B in committing the crime because he knows if his actions fail he can easily pull out the gun to finish off crime. It is not absolutely essential that the means provided should have fully served the precise purpose for which they were supplied. If principal has succeeded in committing crime without making actual use of the weapon the accomplice is nevertheless liable if the weapon has in any way been of use as by intimidating victim or giving confidence to perpetrator. **Scenario 2 I give you a gun with no bullets and tell you not to fire it, but you guy buy bullets yourself , does it make me an accomplice?** Courts have shown that in so far I have given you a weapon, notwithstanding that I have given you instruction not to fire it, I should have known that it may have been misused. I can anticipate that I told the perpetrator he should not fire it he could very well do it. It was clearly evident and foreseeable that the weapon can be used. **Scenario 3** If I give A a gun to kill B but he kills him by stabbing am I an accomplice? Where no use has been made of the means procured , even though with wrongful intent, it cannot be said that they have in any way contributed to the violation of the law. Just as participation is by instigation or incitement is not punishable unless it has in some degree influenced the will and determination of the perpetrator of the act, likewise participation by physical acts does not constitute complicity when it has in fact had no influence upon the happening of the criminal event. So the main points of this provision are that I procured you a weapon, the common design between the accomplice procuring the weapon and between the perpetrator and the weapon is so used in the commission of the crime. Whether it was used or not in the way agreed or not, it produced the result you wanted so you become an accomplice. **Article 42 (d)** is a general umbrella provision which does not limit accomplice's actions to a particular action and assistance can be anything **material.** This paragraph is wide enough to ensure all acts of complicity are included so far as it is efficient or has an influence on the offence. It also consists in knowingly aiding or assisting in any manner principal or principals in acts of preparation. **It is once again essential that accomplice should have acted knowingly that is with the consciousness and intention of cooperating to carry out that offence.** There cannot be guilty participation without proof of the common design. Therefore, if an innocent act of a man of which another takes an advantage to commit an offence, that man is not guilty as an accomplice. It is also important that he act must have indeed helped the principal in preparation or consummation of the offence. If you help someone prepare for a crime, you can only be considered an accomplice if a crime actually starts or at least gets attempted. we always assume that such preparation is followed by a commencement of the execution on the part of the principal. THERE CANNOT BE COMPLICITY UNLESS THERE HAS BEEN AT LEAST AN ATTEMPTED OFFENCE. Also, when we speak of aid given in the acts of consummation of the offence, we assume that the aider has not himself taken an active part in the very act that consummates the offence, for in that case, he would be a co-principal and not an accomplice. Sometimes just being present or saying something that helps the crime happen can make you an accomplice. For example standing outside as a lookout or tricking the victim into going a place where the crime will happen, can make you an accomplice. **Special questions** Can there be true complicity in respect of involuntary (negligent) offences? In view of the fundamental rule that there cannot be true participation in an offence unless the parties have acted in pursuance of the common design, - willed and intented the same offence and done something towards its commission. Knowingly aided or abetted in some other way, mind and will of both of them are directed towards the same offence. Complicity hence does not apply for these type of offences since there is no common design. A negligent offence is when you fail to foresee what Is going to happen. Negligence arises when you fail to foresee and of course you could not have intended something if you did not even foresee it. You should have foreseen it because other people who are more diligent than you would have foreseen it. Hence in a situation that is involuntary, where you fail to foresee, you can never have complicity because in complicity you have a common design which involves both people wanting and intending it to happen and working together towards the common goal. Can there be true complicity in a crime of sudden passion ( in the heat of the moment)? Here it is harder to become an accomplice because there is very little time to plan or coordinate. However,it is still possible if in that short time, you quickly decide to help someone commit a crime. Whether you are considered an accomplice or a principal depends on the specific facts of what happened and how much you were involves. Both roles can exist. Can there be attempted complicity? The answer is no. We have already seen that there cannot be a question of complicity unless the offence has been committed or at least attempted. There is no such thing as a punishable attempted complicity. We either fulfil requirements of law and there is a punishable attempt or we do not fulfil requirements of law and you cannot be charged for attempted complicity. When they have tried and failed to come to an agreement you cannot have complicity. You are either a complicity or not. The instigation in itself may be punishable as an offence in itself but not as attempted complicity. And even here where the offence was to instigate or incite has actually been commited, there would still be a merely attempted complicity not liable to punishment if the act of the accomplice has not had any influence whatsoever in regard to the commission of offence. Does not constitute any guilt it amounts to a non-punishable attempt on the part of the person instigating and does not in any way avail procurer. **Complicity in an attempted offence?** This is possible because here you have fulfilled all requirements of complicity and perpetrator has at least attempted. If someone tries to help in committing a crime and the crime is attempted but not completed, they can still be punished for their role in an attempt. Even if crime doesn't fully happen, everyone involved shares responsibility. If something unexpected stops crime from being completed, accomplices' s punishment might be less but they wont be completely free of punishment. When discussing attempts, it is noted that principal may be exempt from punishment if the crime is not completed due to their voluntary desistance. But the question that arises is: does this voluntary desistance which benefits the principal offender, benefit the accomplice? If someone who has been instigates, incited, aided or abetted decides to abandon criminal plan before any steps towards committing the crime are taken, their repentance also benefits those who instigated, incited, aided or abetted them. In such situations, if no offence is committed, there is no guilty complicity. What about desistance after the attempt? The situation becomes more complicated here when the principal offender repents and decides to stop after they have already begun their actions that constitute an attempt. Opinions among legal writers differ here. Some believe that even in these cases, the principal offender's decision to stop should not benefit only themselves but also the accomplices. Some think that even in such cases desistance of the principal offender should avail not only himself but also his associates.. Carrara, on the other hand, argues that if the principal stopped, the crime was still attempted which is enough to hold those who helped responsible. The principal might avoid punishment because they chose to stop but for the accomplices, the main person's decision to stop , is considered an accidental event beyond their control. does not change the fact that they were involved. Carrara's view which aligns with the law , is that the helpers should still be punished even if principal backed out because accomplices were not involved in that decision. This view is more consistent with our law.How does desistance of accomplice affect his liability? A man commands another to commit an offence but then countermands his order -- if agent becomes aware in time of offence he only is accountable for it. But if person who gave order did not make his change of mind known to the agent in time, he remains co-responsible. Carrara If act of complicity consisted in aiding perpetration of offence, effects of such conspiracy continue to subsist notwithstanding repentance or change of mind of accomplice. Writers argue against the notion that an accomplice who has advised or instructed the principal on how to commit the offence cannot avoid punishment just by trying to stop the crime. They believe that mere attempts to prevent the crime are not enough to absolve the accomplice. According to these writers, the only way an accomplice might avoid punishment Is if they actually succeed in preventing the crime. So complicity in a criminal attempt is punishable under the law. Both offenders are liable to punishment , their punishment is similar but the exact punishment is determined by their level of involvement. While the law states that they are both liable to the same punishment, this does not mean they will always receive the same sentence. Punishment has to be proportionate to the role played in the crime. Trial and punishment are independent of one another. Accomplice can be tried and punished even if principle offender is not. It is important that it must first be proven that a criminal offence was actually committed, completed or attempted and it must be established that an offence against the criminal law has objectively taken place. For someone to be considered an accomplice, there must be sufficient evidence showing their involvement in the crime, simply being associated is not enough, their role must be significant enough to qualify them as an accomplice. **The communicability of the circumstances** If principle is a police officer and being a police officer committed a crime, that constitutes an aggravation, does that aggravation apply to all persons involved? What if one, not advising the rest that they are carrying a weapon, therefore aggravating offence. Would the fact that one of you carry a weapon aggravate offence for all of you? When are certain circumstances communicable to other parties and when are they not? The law distinguishes between personal circumstances and material/real circumstances. In the case of personal circumstances these are not communicable and therefore they only affect that person but with regards to material circumstances , these can be communicable to other parties in the crime. Article 44 provides that any personal circumstances which apply only to one person which either excludes, mitigates or aggravates punishment will not also apply to other offenders involved in the crime. A personal circumstance applies with the identity of a particular person, it is a characteristic of the person such as being a police officer -- characteristic is not communicable to the other person and it is particular to the other person as stipulated in article 44. Personal characteristic which are inherent to the particular individual do not apply in favour or against others involved in commission of crime. **Material circumstances refer to specific factors that are essential to defining a crime or making it more serious. These** are the conditions or elements that must be present for a crime to occur or for the crime to be considered more severe.For example, in a case of sexual abuse, if the victim is a relative of the offender, this relationship is considered a material circumstance. The fact that the victim and the offender are related makes the crime more serious, or \"aggravated.\" Here, being a relative is not just a detail; it\'s a key part of what makes the crime what it is.These material circumstances are important because they either make the crime possible (like bodily harm in a case of assault) or they increase the severity of the crime (like the victim-offender relationship in the sexual abuse case).Article 45 addresses how these circumstances can affect others involved in the crime. If these aggravating factors are present, they can impact all members of a group involved in the crime. So, if you\'re part of a criminal group, and someone in the group commits an act that aggravates the crime (like committing the crime against a relative), that aggravating factor can be \"communicated\" or applied to everyone in the group, making them all more responsible for the aggravated crime. Let's say you plan to rob a house with your friend , owner walks in and without having agreed on it, friend gets a gun out and it about to shoot and you run away instead of stopping him. In order not to be held responsible and defend your position, you have to show that you were in an impossibility to prevent it and prosecution has to show that you had power to prevent it and did not do so, say by pulling his hand. You had to show that you were in an impossibility to prevent it and only then would the circumstances not be communicable to you. If it is shown that instead of running, had you stopped him, provided that you could have, that would have become communicable to you. Not giving your consent to the gun is not enough, you have to show that you actively intervened to stop it. Merely not participating is insufficient and inaction but concrete action to prevent the crime has to be taken, as the law requires. **[CONSPIRACY]** Conspiracy is the agreement between two or more persons to commit an offence, a crime or to do an unlawful act by unlawful means. In 2002, conspiracy was introduced into our maltese criminal code as a general offence by virtue of Article 48A. Prior, conspiracy was only punishable in specific circumstances mentioned in the law such as drug offences and attempts against the life of the president. Under the Criminal Code we have instances of conspiracy as found in article 57,58,67,74 and 338. The offence of conspiracy seeks to criminalise and punish the indirect harm which would have been caused if the conspiracy had been allowed to take its natural course. **It is clear that for the purposes of conspiracy, you must show there is all the elements.** **4 major elements:** 1. **The act of agreement:** This is the actus reus in conspiracy. This act is not merely an intention, but it is the announcement and acceptance of that intention. Every sign or bodily movement is indispensable to effect this agreement. Such act may be an overt act signalling one's agreement or even through a tacit agreement, through which one's inaction or silence cannot be plausibly explained in any other manner except acquiescence to the proposed plan. 2. **The persons agreeing: Second element requires that there are a minimum of 2 conspirators. This was confirmed in the case of republic of malta vs steve john lewis madsen.** It cannot be committed by one person alone for the simple reason that a man cannot conspire alone. Although there must be a plurality of persons it is not necessary that they are tried together. Indeed some conspirators may be unknown to other conspirators provided that they are working under one leader. This raises the question do you have to know who your co- conspiracies are? It is not necessary that all co-conspirators know each other and this was confirmed in the Carmelo borg pisani case. All are still guilty of conspiracy even If you do not know of the other conspirators. 3. **The purpose agreed upon:** According to Article 48 A, the third element required to establish a conspiracy requires that the conspirators have agreed to the commission of a substantive crime which is punishable with imprisonment, but which does not fall under the press Act. Thus our law does not allow one to be guilty of conspiring to commit a contravention or crime which does not carry a sentence of imprisonment. 4. **The mens rea -- the formal element:** For the offence to be completed there must be the agreement to commit a substantive crime but the prosecution also has to prove that the person intended to commit that offence. The prosecution must prove that the conspirators intend to do what they are agreeing on.. The proof of agreement is not enough -- this agreement must be proved to be really intended. Our law has been largely modelled on English law however there is a major distinction between them. Abstract notion. It will not fit under our law, it was not designed in our legal system, under the theory of Carrara. It was a foreign concept and it did not fit into our law so we tried to make it fit under our theory of criminal responsibility. Under the English law it would suffice to prove that there exists, between the co-conspirators intent and an agreement in place to commit a substantive crime as confirmed in the case **R vs Aspinall**. Our definition was slightly different to that of the UK, however, as seen in section 48A of the Criminal Code. The conspiracy in article 48A(2) states that the conspiracy is completed '**from the moment in which any mode of action whatsoever is planned or agreed upon between such persons'**. Therefore, our law in terms of article 48A adds an additional requirement to what you would otherwise find in English common law, and this lies in the fact that persons involved must also agree on the mode of action whatsoever that is. **Under our law we also need the planning and agreement on the mode in which the act (how?) is going to be executed**. This fifth element requires that the co-conspirators have planned out how they intend to commit that crime. This was confirmed in the judgement republic of malta vs steve john caddick. Therefore, the mode of action whatsoever must be definitely concluded between the conspirators so that without the need of any further deliberation can proceed to action. The mode of action must therefore be complete in the sense that the next step is the commencement of the substantive offence. Plan must be complete and not subject to dependent or unforeseeable circumstances. The addition our law makes to the requirements of English law creates a heavier onus of proof on the prosecution. **What if the conspirators having agreed on one mode of action before proceeding of the preparatory acts, abandon the plan completely voluntarily?** In this case this person is still guilty as for that period of time before voluntary desistance, the State was still in jeopardy. Since conspiracy is a formal offence and is therefore consummated regardless or not if desired outcome is achieved there can be no voluntary desistance. This was confirmed in the previously mentioned case of steve john caddick. **But what if the mode of action has been totally agreed upon, but this is subjected to a condition independent of the will of the offenders ( a condition beyond their control that affects their ability to carry out that action)?** Imagine a scenario where individuals have fully agreed on how they will carry out a certain action (for example, planning to deal drugs), but there\'s a condition beyond their control that affects their ability to carry out that actionThe court stated that under the law, the crime of conspiracy to deal in drugs exists and is considered complete as soon as there is **any planning or agreement on how to carry out the action**, regardless of whether the action is actually carried out.This means that the crime of conspiracy is committed when two or more people agree on the plan of action, regardless of whether they actually go through with it. Ifnstead of just planning and agreeing on the action, the individuals involved actually begin carrying out the crime or if the crime has already been committed, then those individuals may face consequences as per the law. Under our law the substantive law of conspiracy or dealing with drugs exists and is completed from the moment any mode of action is completed and agreed upon. A conspiracy is that you have a crime that is completed to moment you agree to do the crime and how you will commit the crime. The way you plan is important. **You do not need any further planning or agreement further from that mode of action.** **No more acts in furtherance of the agreement to be found guilty for conspiracy. The agreement is enough.** The court continues if instead of the mere agreement to deal and agreement as to the mode of action there is a commencement of the execution of the crime intended or the crime has been accomplished, the person or persons in question may be charged with conspiracy and the attempts. This is due to the fact that conspiracy is a crime of its own, independent from the other crimes. One can be charged with the conspiracy to commit a crime and the attempt or the completion of the crime. There was a conspiracy to deal drugs and the consummated offence of dealing. Thus the court found him guilty of two crimes: the one he always intended to do and then the conspiracy to do it. Conspiracy and the attempt or conspiracy and the consummated crime. This case also showed the difficulties faced when trying to prove conspiracy. It\'s hard to directly prove that people conspired (planned together to do something wrong) because they often make their plans quickly and secretly.So, instead of having clear proof of their agreement, we usually have to look at what they did afterward to figure out if they were working together on something illegal.Because we don\'t have direct evidence of the agreement, we have to guess and interpret what their actions mean. We look at what they did and try to guess if it seems like they must have agreed beforehand to do something illegal. One way conspiracy was proved was through confession as in the particular case of ir-repubblika ta' malta vs carmel vella. Other ways of proving such offences is through drawing inference from the behaviour of persons accused, as was done in the case -- repubblika ta' malta vs Janis boruss. What sort of level of completeness is requires in the mode of action? This all tends to be rather subjective. **So at what point in time do you have a mode of action?** Pulizija vs Emanuel Briffa (2016/2017) -- Court of appeal found that there was a conspiracy present. Defence argued saying that there was an agreement to fix the match but that one particular element was missing and it was that of the mode of action which is an essential requirement in terms of conspiracy for guilt. Court said that the plan of action need not be too specific, it was enough that they knew they were going to lose the match. They argued by saying that three elements were needed including how much were they going to be paid etc. As the player, did he know how much he had to get paid, exactly the minute he was going to lose? The answer is clearly no. The defence argues then if nobody can answer the basic questions -- how much am I going to be paid or when granted there was a plan -- is there still a mode of action ? Because per definition the mode of action is completed when the next step is the commencement of the crime -- when the mode of action is complete, when all elements are in place for no more planning to be had. In this particular case -- can you say there is a complete agreement on the mode of action even if they were trying to come to an agreement? Answer is no, there were too many variables and questions had to be answered. Court disagreed arguing that completeness of mode of action does not require specific details and all they needed to know was that they had to lose the match. Notwithstanding that person was found guilty, punishment was a discharge **Punishment for conspiracy** Any person found guilty for conspiracy shall be liable to the punishment for the completed offence of the conspiracy with a decrease of two or three degrees ( found in Article 48A sub-article 3). [**CARMELO BORG PISANI CASE --**] Mr.Pisani lived before 2002 -- conspiracy, as a principle already existed in our Criminal code although it was reserved for certain offences only. Mr.Pisani was recruited by a political group in Italy which had the ideology to subvert the British rule in Malta and instead install an Italian facist rule -- group engaged in a number of subversive activities. Subverting the british rule at the time would have amounted to an offence against the State. Mr.pisani was recruited by this group and he was told that his first mission was to come to Malta to report back on certain findings he may find. In his landing at sea something went wrong and he ended up not coming to shore and ended up hiding in a cave waiting for rough seas to subside -- he shouted for help and a sheperd heard him -- he was found wearing a militaryuniform and was arrested and taken as a foreign military personal. He required medical attention but being a military officer he would not be sent to a civilian hospital but to a military one. On the day he was admitted -- there was meant to be a british medical officer in charge but instead was replaced by a maltese and in doing the rounds he noticed this new arrival and recognised mr pisani who was coincidently his neigbour when they were young. He was quickly identified and was found that he was a member of the Italian group. He was charged with a number of offences including the conspiracy to subvert the british rule in malta. There were a number of defences raised -- There was no formal act of agreement or no formal act of agreement on the mode of action in whi

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