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Prior-fault blame in England and Wales, Germany and the Netherlands
journal contribution
posted on 2023-06-09, 23:36 authored by Anna E Goldberg, John J Child, Hans CrombagHans Crombag, David RoefThis article explores the contested legal conceptualisation and application of “prior-fault” rules in England and Wales, Germany and the Netherlands. Prior-fault rules operate as an exception to the traditional application of criminal offences and defences, allowing a defendant’s previous conduct outside of an offence or defence definition to directly affect his or her liability. The paradigm example of this is prior-fault intoxication, where an intoxicated defendant is found liable for an offence despite lacking mental fault at the time of causing harm; with the missing mental fault effectively substituted by their previous choice to become intoxicated. However, as we discuss, prior-fault is not necessarily limited to such examples and has the potential to operate across a broad range of criminal rules. Through the comparison of jurisdictions, each with varying doctrinal applications of prior-fault, the article seeks both to better understand the concept as well as to analyse the most effective and defensible methods for its application in practice.
History
Publication status
- Published
File Version
- Accepted version
Journal
Journal of International and Comparative LawISSN
2313-3775Publisher
Sweet and MaxwellPublisher URL
Issue
1Volume
8Page range
53-86Department affiliated with
- Psychology Publications
Full text available
- No
Peer reviewed?
- Yes
Legacy Posted Date
2021-04-16First Compliant Deposit (FCD) Date
2021-04-15Usage metrics
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