Criminal Offenses & Responsibility in Maltese Law: Intent, Recklessness, Negligence (78 ch, Lecture notes of Law

Download Criminal Offenses & Responsibility in Maltese Law: Intent, Recklessness, Negligence (78 ch and more Lecture notes Law in PDF only on Docsity! 63 Section 7: Criminal Offense, Criminal Responsibility, and Commission of a Criminal Offense Article 15: Criminal Offense A criminal offense is an unlawful act: (a) that is prescribed as a criminal offense by law; (b) whose characteristics are specified by law; and (c) for which a penalty is prescribed by law. Commentary This provision reiterates some of the aspects of the principle of legality and others relating to the purposes and limits of criminal legislation. Reference should be made to Article 2 (“Purpose and Limits of Criminal Legislation”) and Article 3 (“Principle of Legality”) and their accompanying commentaries. Article 16: Criminal Responsibility A person who commits a criminal offense is criminally responsible if: (a) he or she commits a criminal offense, as defined under Article 15, with intention, recklessness, or negligence as defined in Article 18; 64 General Part, Section 7 (b) no lawful justification exists under Articles 20-22 of the MCC for the commission of the criminal offense; (c) there are no grounds excluding criminal responsibility for the commission of the criminal offense under Articles 23-26 of the MCC; and (d there are no other statutorily defined grounds excluding criminal responsibility. Commentary When a person is found criminally responsible for the commission of a criminal offense, he or she can be convicted of this offense, and a penalty or penalties may be imposed upon him or her as provided for in the MCC. Article 16 lays down the elements required for a finding of criminal responsibility against a person. A court that is assessing the criminal responsibility of a person must address the following issues: e Whether the criminal offense was “committed,” referring to physical elements that will be set out in its definition in the Special Part of the MCC and also referring to the voluntariness of the physical acts as set out in Article 17. Refer- ence should be made to Article 17 and its accompanying commentary. e Whether the accused has the requisite mental element for the commission of the criminal offense, meaning: Did he or she intend to commit it? In cases where the MCC specifies that the offense can be committed through reckless- ness or negligence, the issue is whether the accused acted either recklessly or negligently as defined by the MCC. Reference should be made to Article 18 and its accompanying commentary. At this stage, any “specific” or “special” inten- tion requirements or knowledge requirements that may form part of the ele- ments of the criminal offense should be assessed. This issue is discussed in greater detail in the commentary to Article 18. e Whether there were any justifications for the conduct of the accused person, meaning that he or she may satisfy the two criteria laid out above but still may escape criminal responsibility because he or she has a valid defense to the com- mission of the criminal offense. Justification defenses are those where what was clearly criminal conduct is deemed not to be so because the circumstances make the conduct socially acceptable in some way. For a detailed discussion of justification defenses, reference should be made to Articles 20-22 and their accompanying commentaries, in addition to the general commentary to Sec- tion 9 of the General Part of the MCC. e Aswith lawful justifications, ifa person’s conduct falls within any of the grounds for excluding criminal responsibility set out in the MCC, he or she may escape criminal responsibility. Defenses based on exclusion of criminal responsibility excuse a person from moral blame even when his or her conduct was criminal, such as when his or her conduct was not voluntary or when he or she did not Article 18 choices between various options to act. The basis of criminal responsibility therefore lies in conscious decision making. To establish criminal responsibility, the act (and its consequences) must be the result of a (voluntary or free and conscious) decision. Mens reaalso encompasses the “belief principle.” According to this principle, persons should be judged only on the basis of what they believed they were doing, not on the conse- quences of their acts. There is considerable divergence among states in how the mental element required for a criminal offense is expressed in domestic legislation. In essence, the laws of most states are similar in scope, meaning they criminalize the same forms of mental ele- ments, but the nomenclature—or how the different aspects of the mental element are categorized—differs. This is true even among states that share a common legal tradi- tion. In essence, there are four main concepts of the mental element of a criminal offense: purposefulness, intention, recklessness (or willful blindness), and negligence. The differences and similarities between states in terms of specific aspects of the men- tal element of a criminal offense will be discussed in more detail below. The wording of Article 18 was arrived at after an extensive comparative survey of the criminal legis- lation of many states around the world. A study was also made of the legal doctrine and case law that has built up around these concepts. At one stage, Article 30 from the Rome Statute of the International Criminal Court was considered for use in the MCC. However, this provision seemed confusing and unclear to the drafters and to the many experts who reviewed it. The categorization that was finally decided upon was chosen for its simplicity, brevity, and potential ease of application and understanding. To understand the meaning of the terms intention, recklessness, and negligence in the con- text of the MCC, a reader must suspend any preexisting conceptions and look beyond the definitions of those terms that he or she is familiar with in his or her own system and examine the precise meaning ascribed to them under the MCC. The two main approaches taken in different legal systems will be discussed sepa- rately below. This discussion is important as it forms the background for the discus- sion on the substance of Article 18. It is worth noting that this is a general discussion based on legal systems that were reviewed during the drafting of the MCC; it does not presume to be an exhaustive analysis. Legal Systems That Categorize the Mental Element of a Criminal Offense as Intention (Including Purposefulness), Recklessness, or Negligence. In systems wherein the concepts of intention, recklessness, and negligence are employed, intention can be direct or indi- rect (sometimes called oblique intention). Direct intention means that a person desires to bring about a particular consequence and that he or she does his or her best to do so. In this case, the person has volition, or will, to bring about this consequence. Indirect or oblique intention means that a person sees that a consequence is virtu- ally certain, although he or she does not desire it, but nonetheless goes ahead with the course of conduct. The person takes a deliberate action but a consequence that he or she does not desire occurs. While direct intention is premised on the basis of volition with regard to the particular consequence, indirect intention is premised on the basis of cognition, or awareness, of the consequence. In relation to this consequence of indi- rectintention, it is important thatthe person sees it as virtually certain. Itis notenough that it is highly probable. Where there is a high probability of a particular consequence 67 68 General Part, Section 7 happening, the discussion moves out of the realm of intention and into that of reck- lessness. In some jurisdictions, legislation makes specific reference to the fact that the court must not make inferences or presume that the person intended the natural and probable consequences of his or her actions. The legislation emphasizes that even if the consequences of a person’s action may be objectively deemed to be the natural and probable consequences of his or her action, a person cannot be deemed to intend these consequences unless he or she possessed the cognition that the consequences were vir- tually certain. In the case of recklessness, a person does not have the volition to bring about a particular result; he or she has cognition, just as with indirect intention. However, the level of cognition required for recklessness differs from that of intention. Recklessness does not require virtual certainty; “high probability” is enough. The essence of reck- lessness is that a person takes an unjustified risk. The question that has been answered differently in legal systems is this: By what standard is recklessness judged? In some systems, a subjective standard has been used, meaning the court will look at the accused person's state of mind vis-a-vis the particular consequence. In other systems, an objective standard is employed. In employing this objective standard in some juris- dictions, the test requires that the accused person did not consider the consequences of his or her actions and took an objectively unjustifiable risk. This objective approach has been criticized for leaving a significant loophole, so that where the accused did in fact consider the consequences of his or her action but carried on nonetheless, he or she cannot be held liable under the definition of recklessness. In some other systems, a mixture of the objective and subjective is employed. Thus recklessness will be found where the accused person knew about an objectively unjustifiable risk, which he or she took anyway. In short, in systems with the same categorization of intention, reckless- ness, and negligence, there is no commonly held view as to the precise parameters of recklessness. The scope of negligence is easier to define. While recklessness requires an aware- ness of a risk, negligence does not. Negligence requires that a person, unaware of any consequences, take a course of action that falls below the objective standard that would be expected of a “reasonable person” or a “law-abiding citizen.” This form of liability is completely objective and based upon objective standards that are independent of any subjective desires or beliefs of the accused person. A person is penalized because he or she should have been aware of the risks involved in his or her conduct. Relatively few criminal offenses are defined in terms of negligence. The most common are traffic offenses and environmental offenses. Legal Systems That Categorize the Mental Element of a Criminal Offense as Intention and Negligence. Some legal systems use the term intention to define the mental element of both intention and recklessness, as defined above. The term negligence as used in these systems can also have a broader definition than negligence as discussed above. Intention can be classified as direct intention (dolus directus) or indirect intention (dolus indirectus), or, alternatively, as direct intention in the first degree (equivalent to direct intention) or direct intention in the second degree (equivalent to indirect intention). In addition to these grounds of intention, there is an additional one called eventual intent (dolus eventualis). Direct intention, or direct intention in the first degree, requires voli- Article 18 tion, or will. In such cases, indirect intention, or direct intention in the second degree, requires cognition or knowledge, rather than volition, or will. The degree of cognition held by the perpetrator under indirect intention must be such that he or she knows or foresees with absolute certainty that his or her act will have a particular consequence. Eventual intent requires an element of cognition, albeit a much lesser degree of cognition than required under the principle of indirect intention. The concept of even- tual intent is similar in many ways to the concept of recklessness used in the systems mentioned above. Just as in these systems, wherein there is dispute about the meaning of recklessness, so too is there dispute in relation to the precise meaning of eventual intent. It is clear that some element of cognition is required; the debate centers on what level of cognition will suffice. Some would say the accused needs to be aware of the consequences and accept the possibility of them occurring, while others would say indifference to the consequences or an appraisal of the possibility of those conse- quences occurring would suffice. The latter classification of eventual intent overlaps considerably with the concept of negligence as defined in these systems. Negligence is often classified as “conscious” or “unconscious” negligence. Conscious negligence, similar to eventual intent, requires that the accused considered the possibility of cer- tain consequences but thought they would not occur. Unconscious negligence is iden- tical to the sort of negligence discussed above in relation to the other legal systems, requiring that a person fall below an objective standard of behavior. The discussion will now move to Article 18 of the MCC and its substance, in light of the background provided in the comparative appraisal of the mental element in dif- ferent systems. But first, two issues of note should be mentioned. First, many legal sys- temsalso provide for “strict liability” offenses, where a person may be found criminally responsible irrespective of intention, recklessness, or negligence. This form of mental element is not contained in the MCC. Second, some offenses contained in the MCC. have additional intention requirements, sometimes referred to as special intention, specific intention, or dolus specialis. A good example is the criminal offense of geno- cide under Article 86, which requires the intention to destroy, in whole or in part, a member ofa national, ethnic, religious, or racial group. This specific intention must be proven, in addition to general intention, before a person can be held criminally liable. Some other offenses, such as crimes against humanity, also contain additional knowl- edge requirements under Article 87. Under this offense, it is necessary to prove that the perpetrator had knowledge of a widespread or systematic attack directed against a civilian population. These added intention or knowledge requirements should be looked at in the process of assessing criminal responsibility and should be considered at the stage of assessing the mental element required for the offense. Paragraph 1: The concept of intention used in the MCC covers the concepts of both direct intention and indirect intention, as discussed above. The term purposely relates to the volition of a person in carrying out a course of conduct, meaning the person desires to bring about a particular consequence, and he or she does his or her best to do so. The term knowingly refers to a person’s cognition, meaning a person sees that a consequence is virtually certain, although he or she does not desire it, but nonetheless goes ahead with the course of conduct. As mentioned earlier, there should be a practi- cal or virtual certainty that the consequence will occur. The determination of whether 69