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Flashcards in Forms of participation? Deck (24):
1

What is the difference between a perpetrator, an accomplice and a participant?

1. Perpetrator = A person whose liability is primary and can be established independently of the other parties
2. Accomplice = A person whose liability is derived from the wrongdoing of the perpetrator
3. Participant = Any partner in crime (including perpetrators and accomplices)

2

Is there a difference in punishment between perpetrators and accomplices?

1. GR and NL - Obligatory mitigation of punishment for accomplices
2. EN - Does not officially impose a mitigated punishment for lesser forms of participation - Applies the ‘equivalence’ theory

3

How do you distinguish between perpetrators and accomplices in GR?

Hegemony over the act doctrine - Factual control (influence over the shape and manner of the commission) + Intention to exert hegemony and intention that the offence will be committed

4

GR - Direct perpetrator

- Anyone who, by his own hands, brings about the actus reus of the offence

5

GR - Perpetration by means

1. When a person uses another person as an instrument to bring about the offence
2. That other person will not be liable - Use the hegemony over the act doctrine - There must be subordination - The instrument must show a lack of guilt or wrongdoing

6

GR - Co-perpetration

1. Use the hegemony over the act doctrine
2. The common plan rests upon each participant and each participant is an equal partner in the joint commission of the offence
3. No need to know the exact details, only the essential ones
4. Each participant must make an essential contribution

7

GR - Deviations from the common plan

1. Minor deviations can still be attributed to the other participants if they are of a kind which one could reasonably expect and if they do not essentially alter the severity or the dangerousness of the offence
2. If the act was fundamentally different from the performance of the common plan - Not attributed to the other participants

8

GR - Instigation

1. Requires the actual commission of an offence
2. Causing someone to commit an intentional and unlawful act
3. Can be explicit or implied commitment - As long as it caused a psychological change in the mind of the intermediary (the intermediary did not want to commit the offence before but now changed his mind) - Does not need to be the condition sine qua non, just one of them
4. The instigator must evoke the will to commit the offence + Intentionally induce the commission of the offence + intend for the offence to be committed
5. Dolus eventualis is enough
6. The instigator must know the essential elements of the crime

9

GR - Aiding

1. Requires the actual commission of an offence
2. Any conduct that furthered or made the commission of the offence easier, more secure or more swift
3. (i) a person intends to assist the act and (ii) he knows the essential matters that constitute the objective elements of the offence (must know the type of crime)
4. Dolus eventualis is enough

10

NL - Direct perpetrator

1. Factual perpetration
2. Functional perpetration - (i) power (factual control over the suspect) and (ii) acceptance (intentional involvement in the conduct factually committed by another actor)

11

NL - Deviation from the common plan

If foreseeable - Dolus eventualis will bridge the gap

12

NL - Co-perpetration

1. Those who commit the offence jointly shall be punishable as perpetrators
2. Conscious, complete and close cooperation - Common plan, exchangeability of roles, intensity, clear division of tasks, equal sharing of the booty, essential contribution
3. Physical presence is not necessary - But the role in preparation must have been significant
4. Deviation from the common plan - Accepted if they are of a kind which could be reasonably expected (= dolus eventualis)
5. Failure to distance oneself on its own is not enough

13

NL - Perpetration by means

1. To hold the person behind the scenes criminally liable if the factual perpetrator himself is innocent
2. Barely used now because of functional perpetration

14

NL - Instigation

1. The instigator must have caused a psychological change in the mind-set of the intermediary - But need not be the sole cause
2. Means - Gifts, promises, abuse of authority, use of violence, threat or deception and providing the opportunity, means or information - Very broad
3. Must amount to more than a simple encouragement - The information must be factual
4. Mens Rea - The instigator must intentionally induce the commission of the offence and must intend for the offence to be committed
5. Attempted instigation is also criminalised - If the intermediary changes his mind

15

NL - Aiding

1. Concurrent forms of aiding - The accessory assists during the commission - The aid furthered or facilitated the commission
2. Preceding forms of aiding - The accessory provides the opportunity, means or information necessary - The aid facilitated of made the commission of the offence possible
3. Broad interpretation of the means that can be used
4. Need not be the condition sine qua non
5. (i) the person intends to assist the act and (ii) knows the essential matters

16

EN - Perpetration

1. The person whose act is the most immediate cause of the actus reus
2. There can be more than one

17

EN - Perpetration through innocent agency

1. When a person acted without the necessary mens rea - The master behind the scenes is the perpetrator
2. The person whose act is the most immediate cause of the innocent agent’s act

18

EN - Aiding

1. Assisting, helping or giving support - Broad approach - Helped, facilitated the offence to commit it more easily or with greater safety - Need not be the condition sine qua non
2. Does not require consensus between the perpetrator and the aider
3. Mens Rea - Must intend to aid, must know the essential matters + Includes intention, wilful blindness and subjective recklessness (foresaw a real or substantial risk or real possibility)

19

EN - Abetting

1. Incite, instigate or encourage - The participant did in fact encourage - Its must have been communicated successfully to the principal
2. Does not need to have made a difference in the outcome - As long as the principal was aware of the encouragement
3. Mens Rea - Must intend to abet, must know the essential matters + Includes intention, wilful blindness and subjective recklessness (foresaw a real or substantial risk or real possibility)

20

EN - Counselling

1. To advice, solicit or encourage
2. To provide advice or information
3. To urge someone to commit an offence
4. There must be a connection between the counselling and the commission
5. Mens Rea - Must intend to counsel, must know the essential matters + Includes intention, wilful blindness and subjective recklessness (foresaw a real or substantial risk or real possibility)

21

EN - Procuring

1. To produce by endeavour - By means or to bring about the commission of an offence by another who is not an innocent agent (by persuasion, inducement or threats)
2. The perpetrator must be aware of the procurement
3. Mens Rea - Must intend to procure, must know the essential matters + Includes intention, wilful blindness and subjective recklessness (foresaw a real or substantial risk or real possibility)

22

EN - Joint Criminal Enterprise

1. Several people set out to commit crime X in the course of which another unplanned crime Y is committed
2. Powel and English - Defendants will be held liable if they foresaw it as an incidence of the joint venture - If the act was not objectively foreseeable, the participants will not be held liable
3. Overturned in R v Jogee - Intent is required, not just foreseeability, but foreseeability can be used to show intent

23

What are the different forms of participation in civil law?

1. Direct perpetrator
2. Co-perpetrator
3. Aiding
4. Instigator
5. Perpetration by means

24

What are the different forms of participation in common law?

1. Perpetrator
2. Perpetration through innocent agency
3. Abetting - (= instigating)
4. Counselling
5. Aiding
6. Procuring