Insanity and the Capacity for Criminal Responsibility

2001 ◽  
Vol 5 (3) ◽  
pp. 325-354 ◽  
Author(s):  
Victor Tadros
Keyword(s):  
Nineteenth Century ◽  
Mental Disorder ◽  
Criminal Law ◽  
Criminal Responsibility ◽  
Mens Rea ◽  
Capacity Responsibility

There are two different ways in which the insanity defence could he constructed. These relate to different ways in which the insanity defence might question the responsibility of the accused. Either the defence might show that the act in question was not performed in the appropriate way (that the accused lacks attribution-responsibility) or it might show that the agent was not an appropriate subject for criminal responsibility (that he or she lacks capacity-responsibility). Sometimes it is thought that these possibilities collapse into each other: it is only those that cannot perform their acts in the appropriate way that lack the capacity to be criminally responsible. This essay shows three things: first, that Scots criminal law, at least since the nineteenth century, is in a state of confusion between a capacity-responsibility conception of the defence and an attribution-responsibility conception. Second, that capacity-responsibility does not collapse into attribution-responsibility: there are some agents who are capable of forming mens rea but who ought not to be made criminally responsible due to their mental disorder. Third, that a sophisticated account of the capacity-responsibility conception can provide a version of the insanity defence that is both theoretically more elegant and practically more advantageous than the attribution-responsibility conception that has found favour in England and in some Scots decisions.

scholarly journals ASAS PERTANGGUNGJAWABAN TERHADAP KORPORASI YANG MELAKUKAN TINDAK PIDANA PERBANKAN

2016 ◽  
Vol 1 (1) ◽  
pp. 17
Author(s):  
Nurul Sasmita
Keyword(s):  
Criminal Law ◽  
Criminal Responsibility ◽  
Strict Liability ◽  
Mens Rea ◽  
Human Beings ◽  
Conceptual Approach ◽  
Criminal Offense ◽  
Actus Reus ◽  
Sense Of Justice

The aims of this thesis is (1) to investigate andexplain the positions of corporations in conducting banking criminalacts, and (2) also to identify and explain the criminal responsibility ofbank as the perpetrator in banking criminal acts. This research isnormative, conceptual approach and the approach of legislationregarding responsibility principles of the corporation for banking criminalacts.Corporations have chances in committing a crime, especially bankingcriminal acts just by making a corporation recognized as a subject ofexistence apart from human beings, so that in practice there is a criminal offense committed by the corporation. The corporation takespart in the occurrence of a crime. In practice, the determination of acriminal offenseconducted by the corporation is known through two things: first, the works of the committee: they should be constructed as theyuse the principles of the liability of corporation’s criminal actions. Principally, stakeholders and officials or employees of a corporationhave the responsibility for its owncorporate actions; second, errors in the corporation,as long as it is in the science of criminal law, the overview of criminals is still oftenassociated with physical actions performed by the manufacturers(fysieke dader) but this can be overcome by the study of  "functionalactors" (functioneledader). We can prove that the action of committeeor employees of the corporation in the society act traffic concerned,the acts of the corporationerrors in the forms (dolus or culpa) must be regarded ascorporate faults.Towards the corporations that make banking criminal acts we canhave their responsibility with the principles of strict liability. Onthe principle of strict liability, it is known that the responsibility ison them even if they do not have the required mens rea. The substanceof this principle is that the perpetrator has been punished if theperpetrator may have provable conduct prohibited by the criminalprovision (actus reus) withoutsee the inner attitude. In this conception, the corporation is consideredhaving responsibility forphysical acts performed by management. A corporation convicted in principles isintended to develop a sense of justice in the corporation who commitsbanking criminal acts as stated in Article 46 paragraph (2), sothat if a corporation committed criminal acts, we can also have theresponsibility of the corporation. Keywords:Banking Criminal Acts, Corporation, ResponsibilityMenurut peraturan perundang-udangan, korporasi sebagai subyek hukum dapat dikenakan pidana sebagaimana manusia melakuka tindak pidana. Pada praktiknya, penentuan tindak pidana yang dilakukan oleh korporasi diketahui melalui dua hal, yaitu pertama tentang perbuatan pengurus yang harus dikonstruksikan sebagai perbuatan korporasimaka digunakanlah asas pertanggungjawaban pidana. Pada asas tersebut stakeholder maupun pengurus atau pegawai suatu korporasi, bertanggungjawab terhadap perbuatan korporasi itu sendiri. dan kedua tentang kesalahan pada korporasi, memang selama ini dalam ilmu hukum pidana gambaran tentang pelaku tindak pidana masih sering dikaitkan dengan perbuatan yang secara fisik dilakukan oleh pembuat (fysieke dader) namun hal ini dapat diatasi dengan ajaran “pelaku fungsional” (functionele dader). Kita dapat membuktikan bahwa perbuatan pengurus atau pegawai korporasi itu dalam lalu lintas bermasyarakat berlaku sebagai perbuatan korporasi yang bersangkutan maka kesalahan dalam bentuk (dolus atau culpa) mereka harus dianggap sebagai kesalahan korporasi. Terhadap korporasi yang melakukan tindak pidana perbankan dapat dimintai pertanggungjawaban pidana dengan menggunakan asas strict liability.Pada asas strict liability diketahui bahwa pembebanan tanggung jawab pidana kepada pelakunya sekalipun pelakunya tidak memiliki mens rea yang dipersyaratkan. Adapun substansi dari asas ini adalah pelaku sudah dapat dijatuhi pidana apabila pelaku telah dapat dibuktikan melakukan perbuatan yang dilarang oleh ketentuan pidana (actus reus) tanpa melihat sikap batinnya. Dalam konsepsi ini, korporasi dianggap bertanggung jawab atas perbuatan yang secara fisik dilakukan oleh pengurus (direksi dan komisaris). Dipidananya korporasi pada asas ini dimaksudkan dapat menimbulkan rasa keadilan pada korporasi yang melakukan tindak pidana perbankan, sehingga apabila korporasi melakukan tindak pidana maka korporasi juga dapat dimintai pertanggungjawaban.Kata kunci: Korporasi, Pertanggungjawaban, Tindak Pidana Perbankan

scholarly journals Inchoate aspects of Attempted Crimes: Revisiting Criminal Law for its effective Management

2019 ◽  
Vol 8 (2S7) ◽  
pp. 391-395
Keyword(s):  
Criminal Law ◽  
Criminal Responsibility ◽  
Criminal Activity ◽  
Mens Rea ◽  
Effective Management ◽  
Actus Reus ◽  
Element Approach

Actus Reus is known as the external element of the objective component of Criminal Law. Mens Rea, the guilty intention, determines the criminal responsibility. Mens Rea and Actus Reus both are the components of a criminal activity that determines the liability of the accused person. An action carried out in furtherance of criminal activity doesn’t become an attempted crime unless it is confirmed by the illegality for which it was conducted. An attempted crime is an action that reveals the illegal intention on its face. The aspects of a crime such as the Mens Rea, Actus Reus, intentional crime, unintentional act caused as a result of carelessness, motivates to indulge in violating the provisions of law. The four theories of law such as the rule of proximity, the test of unequivocally, the indispensable element approach and the test of social danger are the elements of a crime.

scholarly journals After the age of criminal responsibility: a defence for children who offend

2016 ◽  
Vol 67 (3) ◽  
pp. 327-341
Author(s):  
Claire McDiarmid
Keyword(s):  
Young People ◽  
Mental Disorder ◽  
Lived Experience ◽  
Public Interest ◽  
Developmental Psychology ◽  
Criminal Responsibility ◽  
Mens Rea ◽  
Criminal Process ◽  
England And Wales ◽  
The Public

In Scotland, the age of criminal responsibility is 8, although children cannot be prosecuted until they are 12. In England and Wales, for all purposes, the age is 10. This article argues that a further mechanism is needed to protect the young who do wrong within the criminal process and it argues for a new, bespoke defence, to be available to young people from the age of criminal responsibility until they attain the age of 18. It looks firstly at criminal capacity – what it is that needs to be understood fairly to hold anyone criminally responsible – and draws on material from developmental psychology and neuro-science, as well as looking at the child’s lived experience, to provide some evidence that the young may, without fault, lack this capacity. It then examines the use of age generally in law, and the age of criminal responsibility within this. Next, it considers existing lack of capacity defences – nonage, diminished responsibility, insanity (or mental disorder) and absence of mens rea – to consider their suitability for use by young and immature defendants. Finally, it presents a proposal for the form of the new defence, taking into account the need for balance with the public interest in conviction of the guilty. Throughout, it notes and analyses the Law Commission’s proposals in this respect.

Mental disorder, criminal responsibility and the social history of theories of volition

1979 ◽  
Vol 9 (1) ◽  
pp. 13-19 ◽  
Author(s):  
Roger Smith
Keyword(s):  
Nineteenth Century ◽  
Mental Disorder ◽  
Social History ◽  
Criminal Responsibility ◽  
The Social ◽  
History Of

SYNOPSISNineteenth-century theories of human volition are discussed in relation to ideas on insanity and responsibility. Attention is drawn to the importance of accounts of volition for medical psychologists and to the implications of these accounts for medical and lay discussion of criminal responsibility.

Responsibility, Criminalization, and Political Economy

2021 ◽  
pp. 193-216
Author(s):  
Lindsay Farmer
Keyword(s):  
Nineteenth Century ◽  
Political Economy ◽  
Criminal Law ◽  
Criminal Responsibility ◽  
Legal Analysis ◽  
Early Nineteenth Century ◽  
Critical Potential ◽  
New Science ◽  
The Impact

One of the most important and distinctive themes of Lacey’s recent work has been the analysis of penal practices from the perspective of political economy. However, it is arguably the case that ‘political economy’ is primarily viewed as a dimension of the context in which the criminal law develops rather than as a method of legal analysis. In this chapter I explore the meaning and critical potential of the concept of political economy—how it is used by Lacey, the different traditions that she draws on—and what the perspective and theory of political economy contributes to our understanding of criminal law. I seek to deepen the relevance of political economy to the analysis of criminal responsibility by exploring how the development of the modern conception of English criminal law in the early nineteenth century was itself shaped by contemporary understandings of political economy. Most historical work on the development of the modern criminal law has focused on the impact of utilitarianism to show how changes in penal laws and institutions were linked to new efforts to shape individual conduct in society. However, equally important to the intellectual and political culture of the early nineteenth century were understandings of the new ‘science’ of political economy. This chapter explores the ways in which theories of political economy shaped the modern criminal law in this period and thereby to open up new possibilities for exploring connections between criminal law, criminal responsibility, and political economy—and thus for critical criminal law theory.

Judges v. Jurors: Courtroom Tensions in Murder Trials and the Law of Criminal Responsibility in Nineteenth-Century England

1999 ◽  
Vol 17 (3) ◽  
pp. 467-506 ◽  
Author(s):  
Martin J. Wiener
Keyword(s):  
Nineteenth Century ◽  
Criminal Justice ◽  
Criminal Law ◽  
Criminal Responsibility ◽  
Important Change ◽  
Administrative Change ◽  
The Law ◽  
Murder Trials ◽  
Appeals Court ◽  
Justice Practice

Although it is well known that the criminal law's administration in nineteenth-century England altered decisively, little important change has been noted in the substantive criminal law. Yet change there was, but produced less through legislation (as was much administrative change) or even appeals court rulings than through everyday criminal justice practice. In particular, the effective meanings of legal terms central to the prosecution of homicide—terms such as provocation, intention, and insanity—were in motion during the nineteenth century as part of a broader redefining and reimagining of liability and responsibility. To grasp these often subtle shifts of meaning, we must look to the sites in which they occurred, the most important of which were the courtrooms of the assize courts, where the most serious offenses were tried.

The Criminal Responsibility of Corporations

1929 ◽  
Vol 3 (3) ◽  
pp. 398-402
Author(s):  
C. R. N. Winn
Keyword(s):  
Corporal Punishment ◽  
Criminal Law ◽  
Criminal Responsibility ◽  
Mens Rea ◽  
Liability For Tort ◽  
Corporate Liability

Where it has been sought to impose on a corporation liability for crimes committed by its agents in the course of its business and their employment, all the intellectual obstacles which had to be surmounted before imposing corporate liability for tort have been at least equally obstructive, besides the further difficulty that the criminal law knows no such doctrine as ‘respondeat superior.’ A man is criminally liable for his own acts and for them alone; and in order to establish his guilt it is necessary to show that two elements concur: the actus must be reus, and the mens, rea. Again there is the difficulty that a corporation is not susceptible to corporal punishment.

scholarly journals Automatism and Mental Disorder in Scots Criminal Law

2015 ◽  
Vol 19 (2) ◽  
pp. 210-233 ◽  
Author(s):  
Elizabeth Shaw
Keyword(s):  
Mental Disorder ◽  
Criminal Law ◽  
Criminal Responsibility ◽  
English Law ◽  
Law Commission

In this article, Elizabeth Shaw examines the rule of Scots law that mental abnormality can sometimes entirely eliminate a person's criminal responsibility for her actions. Two separate defences are considered: (1) mental disorder excluding responsibility and (2) automatism. The former is a new statutory defence, replacing the old defence of insanity, which was created following a report by the Scottish Law Commission. That report ignored automatism, an omission argued by the author to be unfortunate since automatism and the mental disorder defence are very closely related. By looking at the mental disorder defence in isolation, the Commission missed an opportunity to make sure that the criminal law takes a philosophically coherent and practically workable approach to people with mental abnormalities. The author's analysis of the Scots law is undertaken in comparison with legal developments in the same field in English law.

scholarly journals PERTANGGUNGJAWABAN PIDANA KORPORASI DALAM TINDAK PIDANA LINGKUNGAN HIDUP BERDASARKAN ASAS STRICT LIABILITY (STUDI KASUS PENCEMARAN LINGKUNGAN OLEH PT. RAYON UTAMA MAKMUR (RUM) KABUPATEN SUKOHARJO)

2021 ◽  
Vol 8 (2) ◽  
pp. 64
Author(s):  
Henny Yunita Fitriani
Keyword(s):  
Environmental Pollution ◽  
Criminal Law ◽  
Criminal Responsibility ◽  
Environmental Law ◽  
Strict Liability ◽  
Main Element ◽  
Mens Rea ◽  
Civil Lawsuit ◽  
Actus Reus ◽  
Relationship Of

<p>Abstract<br />Criminal act formulated in Environmental Protection Law Number 32 Year 2009 still contains an  element of error (mens rea) as the main element that must be proven. In the case of environmental criminal acts committed by corporations, it is difficult to prove the causal relationship of the element of error with the criminal law act (actus reus). The strict liability doctrine can be applied as a basis for corporate criminal responsibility that commits environmental crimes by revising criminal provisions in environmental law (UUPPLH) by removing mens rea element, because the current UUPPLH only provides a basis for implementing strict liability in settling disputes through courts with a civil lawsuit mechanism. The expansion of the principle of strict liability in criminal law will more effectively impose corporate criminal responsibility, including in this paper the case of environmental pollution by PT. Rayon Utama Makmur (RUM) Sukoharjo.<br /><br /></p><p>Abstrak<br />Perumusan tindak pidana dalam Undang-Undang Nomor 32 Tahun 2009 tentang Perlindungan  dan Pengelolaan Lingkungan Hidup masih mengandung unsur kesalahan (mens rea) sebagai unsur pokok yang harus dibuktikan. Dalam kasus tindak pidana lingkungan yang dilakukan korporasi sulit untuk membuktikan hubungan kausal unsur kesalahan tersebut dengan perbuatan hukum pidana (actus reus). Doktrin strict liability dapat diterapkan sebagai dasar pertanggungjawaban pidana korporasi yang melakukan tindak pidana lingkungan hidup dengan cara merevisi ketentuan pidana dalam hukum lingkungan (UUPPLH) dengan menghapus unsur kesalahan, karena UUPPLH saat ini hanya memberikan dasar penerapan strict liability dalam penyelesaian sengketa melalui pengadilan dengan mekanisme gugatan perdata. Perluasan asas strict liability dalam ranah pidana akan membebankan pertanggungjawaban pidana korporasi secara lebih efektif, termasuk dalam makalah ini kasus pencemaran lingkungan oleh PT. Rayon Utama Makmur (RUM) Sukoharjo. <br /><br /></p>

6. Criminal capacity, mens rea, and fault

2019 ◽  
pp. 156-215
Author(s):  
Jeremy Horder
Keyword(s):  
Criminal Law ◽  
Criminal Responsibility ◽  
Criminal Liability ◽  
Mens Rea ◽  
Factors Affecting ◽  
Corporate Criminal Liability ◽  
Special Factors ◽  
Fundamental Requirement

This chapter deals first with another fundamental requirement of a crime: criminal capacity. It is a precondition of criminal liability that the defendant is a person with sufficient capacity to be held responsible. This leads to an examination of infancy and insanity as barriers to criminal responsibility, and then to a consideration of special factors affecting corporate criminal liability. Secondly, this chapter considers fault requirements as an element of criminal offences. It explores some of the reasons for and against the criminal law requiring proof of fault in any form. It also considers principal varieties of fault requirement in the criminal law, such as intention and recklessness.

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