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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 Roef
This 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 Law

ISSN

2313-3775

Publisher

Sweet and Maxwell

Issue

1

Volume

8

Page range

53-86

Department affiliated with

  • Psychology Publications

Full text available

  • No

Peer reviewed?

  • Yes

Legacy Posted Date

2021-04-16

First Compliant Deposit (FCD) Date

2021-04-15

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