University of Groningen A Cognitivist and Volitionist Analysis of Conditional Intent and Conscious Negligence in Traffic Cases on the Basis of Desirability Maximization Theory van Dijk, Alwin Published in: Criminal liability for serious traffic offences IMPORTANT NOTE: You are advised to consult the publisher's version (publisher's PDF) if you wish to cite from it. Please check the document version below. Document Version Publisher's PDF, also known as Version of record Publication date: 2015 Link to publication in University of Groningen/UMCG research database Citation for published version (APA): van Dijk, A. (2015). A Cognitivist and Volitionist Analysis of Conditional Intent and Conscious Negligence in Traffic Cases on the Basis of Desirability Maximization Theory. In A. Van Dijk, & H. Wolswijk (Eds.), Criminal liability for serious traffic offences: essays on causing death, injury and danger in traffic (pp. 173- 225). (Governance & recht; Vol. 11). 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Criminal Liability for Serious Traffic Offences CriminalLiabilityforSeriousTrafficOffences.indd 1 3-12-2014 10:16:21 CriminalLiabilityforSeriousTrafficOffences.indd 2 3-12-2014 10:16:21 Criminal Liability for Serious Traffic Offences Essays on Causing Death, Injury and Danger in Traffic Editors Alwin van Dijk Hein Wolswijk CriminalLiabilityforSeriousTrafficOffences.indd 3 3-12-2014 10:16:21 Published, sold and distributed by Eleven International Publishing P.O. Box 85576 2508 CG The Hague The Netherlands Tel.: +31 70 33 070 33 Fax: +31 70 33 070 30 e-mail: [email protected] www.elevenpub.com Sold and distributed in USA and Canada International Specialized Book Services 920 NE 58th Avenue, Suite 300 Portland, OR 97213-3786, USA Tel: 1-800-944-6190 (toll-free) Fax: +1-503-280-8832 [email protected] www.isbs.com Eleven International Publishing is an imprint of Boom uitgevers Den Haag. ISBN 978-94-6236-466-0 ISBN 978-94-6274-141-6 (E-book) © 2015 Alwin van Dijk & Hein Wolswijk | Eleven International Publishing This publication is protected by international copyright law. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior permission of the publisher. Printed in The Netherlands CriminalLiabilityforSeriousTrafficOffences.indd 4 3-12-2014 10:16:21 Preface This book, which is part of the Netherlands Institute for Law and Governance Series, is the result of an international conference on criminal liability for serious traffic offences held on 7 September 2012 in Groningen, The Netherlands. We would like to thank most warmly Marie-Aimée Brajeux, Karel Brookhuis, Manuel Cancio Meliá, Marius Duker, Roberto Flor, Ingke Goeckenjan, Marc Groenhuijsen and Sally Kyd Cunningham for their stimulating contributions to the conference. We are also grateful to the Groningen Centre for Law and Governance and the Department of Criminal Law and Criminology of the University of Groningen, in particular the Department’s chairman Berend Keulen and its visiting professor Michael Bohlander, for supporting this project, financially and otherwise. Finally, we would like to express our gratitude to Esther Gerringa, Leonie Ettema and Carien de Jager for their invaluable help in organizing the conference. The criminal law on serious traffic offences is a fascinating area, which has not received as much attention as it deserves. This book aims to fill that void. We believe it contains valuable insights for legal scholars, legislators and members of the judiciary all over the world. July 2014 Alwin van Dijk Hein Wolswijk v CriminalLiabilityforSeriousTrafficOffences.indd 5 3-12-2014 10:16:21 CriminalLiabilityforSeriousTrafficOffences.indd 6 3-12-2014 10:16:21 Table of Contents 1 The Complex Nature of Serious Traffic Offences 1 Alwin van Dijk and Hein Wolswijk 1.1 Introduction 1 1.2 The Complex Legislative Choices Underlying the Criminalization of Serious Traffic Offences 2 1.2.1 The Many Variables Involved in Drafting Serious Traffic Offences 2 1.2.2 Some Essential Legislative Issues 3 1.2.3 Conclusion 5 1.3 The Complex Interpretative Questions Emerging in Traffic Cases 5 1.4 Outline 8 2 Serious Traffic Offences: The Dutch Perspective 9 Hein Wolswijk 2.1 Introduction 9 2.2 Some General Characteristics of Dutch Criminal Law 9 2.3 An Overview of Dutch Criminal Traffic Law 11 2.3.1 Traffic Offences Involving No Harm (Conduct Offences) 11 Specific Traffic Regulations 11 General Traffic Provision 12 Driving Under Influence 12 2.3.2 Intentional Offences 13 The Concept of Intent 13 Intentional Offences and Dangerous Driving 14 2.3.3 Negligent Homicide and Negligently Causing Serious Injury in Traffic 17 Legal Framework; Core Provisions 17 The Concept of Negligence 19 2.4 The Lower Limit of Negligence 21 2.4.1 General Approach to Establish Negligence 21 2.4.2 Categories of Punishable Negligence 23 2.5 The Boundary Between Plain Negligence and Recklessness 26 2.5.1 Introduction of Recklessness as a Form of Negligence 26 2.5.2 Meaning of Recklessness 28 2.6 Gaps in Dutch Criminal Traffic Law? 31 2.6.1 Harmful Consequences and Mens Rea 31 2.6.2 Causing a Serious Accident by Culpa Levis 32 vii CriminalLiabilityforSeriousTrafficOffences.indd 7 3-12-2014 10:16:21 Criminal Liability for Serious Traffic Offences 2.6.3 Dangerous Traffic Behaviour Without (Serious) Consequences 33 2.7 Conclusion 35 Bibliography 36 3 Serious Driving Offences in England and Wales 39 Sally Kyd Cunningham 3.1 Introduction 39 3.2 Common Law Homicide Offences 40 3.2.1 Murder 40 3.2.2 Manslaughter 40 3.3 Statutory Causing Death by Driving Offences 41 3.3.1 Causing Death by Dangerous Driving (CDDD) 42 3.3.2 Causing Death by Careless Driving (CDCD) 46 3.3.3 Causing Death by Careless Driving Whilst under the Influence of Drink or Drugs (CDCDUI) 52 3.3.4 Causing Death by Driving Whilst Uninsured, Unlicensed or Disqualified (CDUD) 53 3.4 Serious Non-Fatal Driving Offences 56 3.4.1 Causing Serious Injury by Dangerous Driving (CSIDD) 56 3.5 Causation 57 3.6 Police Investigations, the CPS and the Role of the Bereaved 60 3.7 Conclusion 64 Bibliography 65 4 French Criminal Law and Serious Traffic Offences: Aspects of Fault and Causation 67 Marie-Aimée Brajeux 4.1 Introduction: Relevant Background 67 4.1.1 General Background: Civil Law and Codification 67 4.1.2 Driving-Related Offences: The Legislative Background 68 4.1.2.1 Sensitisation 69 4.1.2.2 Prevention 69 4.1.2.3 Repression 71 4.1.3 Towards Legislative Overkill? 73 4.2 Liability for Serious Driving Offences 75 4.2.1 Offences for Involuntary Manslaughter and Involuntarily Causing Injury 76 4.2.1.1 The Substantive Offences 76 4.2.1.2 The Aggravating Scale 78 4.2.2 Fault and Causation in French Criminal Law: Complementary Concepts 79 4.2.2.1 Fault and Causation in French Criminal Law 79 Fault 79 Causation 81 viii CriminalLiabilityforSeriousTrafficOffences.indd 8 3-12-2014 10:16:21 Table of Contents 4.2.2.2 Fault and Causation: Uncomfortable Bed Fellows or Nuanced Complementarity? 82 4.2.3 Fault and Causation in Serious Driving Offences: Creating a Severe Regime of Liability 84 4.2.3.1 Causation in Serious Driving Offences 84 4.2.3.2 ‘Faute Simple’ and Quasi-Automatic Liability 86 4.3 Sentencing and Serious Driving Offences: A Mitigating Factor? 87 Bibliography 88 5 Serious Traffic Offences: The German Perspective 91 Ingke Goeckenjan 5.1 Introduction 91 5.2 Some Background Information 92 5.3 Overview of the Provisions Relevant to Serious Traffic Crime 96 5.4 Specifics of German Law Concerning Serious Traffic Offences 99 5.4.1 Conditional Intent to Kill in Cases of Very Dangerous Driving 99 5.4.2 Requirements for Negligent Homicide in the Context of Road Traffic 102 5.5 Conclusions 104 Bibliography 105 6 The Spanish Perspective on Traffic Offences: Tough on Danger, Soft on Harm, and Penal Populism 107 Manuel Cancio Meliá and Mariona Llobet Anglí 6.1 Introduction 107 6.2 Basic Elements of Substantive Criminal Law: Traffic Offences under Spanish Law 108 6.2.1 Endangerment Offences 108 6.2.2 Crimes with Concrete Results 113 6.3 Reorientation towards Prevention and Control of the Courts’ Interpretation: Abstract Danger and the Harm Principle 115 6.4 Conclusions: ‘The Hen or the Egg’ and Penal Populism 119 Relevant Provisions in the Spanish Criminal Code* 123 Bibliography 127 7 The Relation Between Culpability and Harm in Sentencing Traffic Offences in the Netherlands and England & Wales 131 Marius Duker 7.1 Introduction 131 7.2 Comparing the Relevant Offences 133 7.2.1 Endangerment Offences