In Session: Criminal Law Revision – Prof. Stefano Filletti x GħSL

[MUSIC] Welcome to Ghanado's session, the podcast designed for low students and legal enthusiasts, looking to deepen their understanding of key legal topics. Brought to you by Ghanado Advocates, this platform of various insightful discussions and expert interviews on a range of legal subjects. Additionally, our revision-focused episodes created in close collaboration with INS cell are designed to support students preparing for exams. Whether you're studying or simply looking to expand your legal knowledge, Ghanado's session is here to guide you through. I'm Averyl, I'm a academic officer and in the studio with us today, we have professors step one of the letti. I was kindly accepted to do a brief revision session for second year, four first years of criminal law, CRL-101. Thank you for joining us on the program today, Professor Letti. These revision sessions are in no way a substitute for lectures and nothing mentioned on the podcast will deliver from what is discussed in class. However, the aim of these podcasts is to offer students an alternative platform and video in order to take their understanding and learning to the next level. During these sessions, we will try to summarize some of the main points and principles of the topics covered by Professor Letti, as well as focus on a number of exams and strategies. Let's begin. One of the most test-its-defenses is insanity. What is the legal test for insanity under the multi-scriminal law? So, insanity is not defined by our law, in section 33 of the criminal code. Although the law officially recognizes the term insanity. And this is important to state that the law does not define it, because the rules we use in court to define insanity are not law made, but they are judge made, court made, or jurist made, which means although we have solid interpretive tools to define insanity, they are not necessarily our law, which also means in turn, that this definition can change by time. Now, given that to form a criminal intent, you require two capacities. The capacity to understand the kapacitadi intender, el a kapacitadi volere o the capacity to will. Our jurists, our courts, identify except two forms in self-insanity, one which affects your capacity to understand, and one which affects your capacity to will. These are colloquially referred to as the right or wrong test when it affects your capacity to understand or the irresistible impulse test when it affects your volitional capacity. What are these? These are instances where jurists identify that you have a faulty capacity, either one or the other. And how would you find these? Well, most of our learning comes from Professor Mamo. Professor Mamo in turn refers to UK interpretation, admittedly, UK case law. In this particular case, I'm referring to the Macnorton rules. The Macnorton rules came with a very particular time in UK history. It was a case where the private secretary of the prime minister was shot. It was a case of mistaken identity because this person wanted to give the prime minister. And Macnorton was tried. He was found to be insane, and that such was not convicted on the grounds of insanity. Now, at that moment in time, the queen head of state was displeased with the fact that there had been a large number of acquittals on the grounds of insanity, including ones which tried to take her own life. So she asked the House of Lords to review the whole concept of insanity under UK law. And the House of Lords came up with a number of recommendations. Mamo's rights for two of them, a particularly relevant, at least two of them have been assimilated and taken up by our courts. And the principles behind these are simple. The first one is that every person is presumed to be sane, which means that ordinarily, every person, a raiding court is presumed to be sane, and the other words, presumed by the court to possess both capacities and the capacity, therefore to form a criminal tent. The capacity to stand, therefore, in trial, be judged and convicted, because you are presumed to be sane. But this presumption is a rebuttal with presumption. It is a Urestantum presumption. Which can be disproved. Now, if one wants to disprove with, first and foremost, defense counsel would need to disprove that because you are presumed to be sane. But to what extent and how do I prove that I have an issue of insanity? Well, the second rule set out by MacNaughton would tell us that a person is afflicted by a disease of the mind, which would render that person incapable of appreciating the nature and quality of his or her actions. Let's begin with the latter part. So this form of insanity, whatever it may be, must affect the nature and the quality of one's actions. Or rather, that a person either is not aware of what he or she is doing, or that a person notwithstanding that he or she may appreciate what they are doing doesn't know that what he or she is doing is wrong, is morally wrong. So there's something very defective in your understanding. You are not understanding what you are doing. You think you're doing one thing, but in actual fact, you're doing something completely different. Or you know what you are doing, but you have an incapacity to understand what you are doing is wrong. But in this definition, the House of Lords restrict this mental condition to be the result of a disease of the mind, and that therefore restricts the instances of where you can plead insanity. Because mental diseases of the mind, and this is a legal definition, therefore, which does not necessarily tell you with the medical definition of insanity, the specific in the legal terms because it's got to be a disease of the mind which produces this particular effect. Disease of the mind are more or less permanent. You don't sort of like an influenza or a cold, today I'm insane tomorrow I am not. It has to be a disease of the mind. So automatically by including that characteristic to insanity, you exclude instances of temporary insanity, whatever again they may be. The reason for it is simple. The courts want to restrict the wide application of this defense of insanity because at the end of the day, the laws are fording a situation where a person is unpunished for any crime he or she may commit in a state of insanity. So the law needs to restrict even from a public policy point of view. Actually, I'll phrase on the law the courts and the jurists want to restrict these instances of insanity. So I repeat the first formulation is a disease of the mind which would affect your understanding of the nature and the quality of your actions or that you don't understand that what you do is wrong. The second formulation is similar. The second formulation is similar but applies to your volition capacity, your capacity to will. What is a capacity to will? Because even this is sometimes misunderstood. The capacity to do it is your capacity to forbear, to stop, to stop yourself. You know this is a crime, you know this is wrong. You have the capacity to say no, to stop but you choose to do it nonetheless. Now if there's something wrong in that breaking system in that system of for you not to be able to do it, again you are afforded under our system a defense of insanity. In this particular case, Mamo Sites, a judgment delivered in the Cape of Good Hope in South Africa, Rex versus Hay, which is a mirrored image of the McNaughton rules. This time however, in the case of volition capacity. Again, according to Rex versus Hay, every person is presumed to be saying and secondly, secondly, the second rule is that this form of mental capacity which again must be the result of the system mind. So what I've said just now applies also for this form of insanity is one which affects your capacity to will. So, notwithstanding that you might know and realize that what you are doing is morally wrong, you have an incapacity to stop. You have an incapacity to refrain from committing the act and hence you must commit the act. If you can prove that this is the satisfaction of a judge or jury, you land yourself to the defense of insanity. Needless to say, this form of insanity must exist at the time you commit to the act and no other time. Otherwise, you are not afforded. The defense, once you have successfully pleaded insanity, you will have to be acquitted of all charges, also specifies that then you are taken for care. It is not the case of you roaming around freely the streets, there are special provisions which state that you must then be taken for care. How do you prove insanity? As I said, it is a legal definition. Yes, experts are relied upon to establish whether there is this disease of the mild which produces any of the effects we have just described. But it being a legal definition, the medical definition, there have been various instances where the judge and jury have rejected the expert's conclusion. So it is indicative, it is forceful having an expert indicating one way and generally speaking, one would follow that but nobody is bound by it because there are slight nuances, differences between the medical and the legal definition of insanity. Excellent. Let's move on to another topic which is very deceptively simple but has many traps which is intoxication. What is the difference between voluntary and involuntary intoxication in multi-slaw? The law in section 34 now, the criminal code, tells us it starts with a very ominous statement but a right statement saying that intoxication is not a defense to a criminal charge so the principle is you do not drink, comment a crime and then engage with the defense of intoxication so self intoxication as a result of which you truly are intoxicated will define it does not give rise to this defense except whether law provides otherwise and there are exceptions. The first one is where it is committed by the malicious or negligent act of a third party as a result of which you fail to understand that which you are doing. That is ingrained because these defenses are always attacking your criminal tent which requires like a patch it had the intended like a patch it had the volunteer the capacity to understand and the capacity to will. These are defenses which are exceptions to those rules you cannot form a criminal tent. So this first formulation means it requires two things. It must be accidental. It must be accidental to you. It cannot be an instance of self intoxication. It must be I repeat the result of the negligent or malicious act of a third party. For instance somebody spikes your drink you being completely unaware of that fact or somebody negligently does something recently. I have had a case because this is why this is interesting because can be applied in different scenarios. I had a case where a doctor prescribed a drug to a patient and the patient went completely mad, completely mad. Wasn't the same but obviously had no idea what to do was doing as a result of the intoxication. Now it wasn't his doing and he didn't just the pill but that medicine did had the side effect in a very minute percentage of the population. And the court accepted that that could have been the negligent, not accidental because the way prescribed. The patient is not a doctor, the patient is not going to contest the doctor's decision as to why these medicines were prescribed. But the court accepted that the risk minimal as it was taken by the doctor could be interpreted as falling within the definition of the negligent act of a third party because the doctor could have couched a trisk or advised of that trisk before. It's not that the doctor committed an negligent act in the sense that the acronym in negligent act but it could be interpreted for the purpose of intoxication as being that because the person who committed the crime was clearly and it was scientifically proven that this that he fell within that margin of error on the side effect of the drug and the court accepted it. But it must also be complete. So you don't go out, have one drink and then claim that you were intoxicated, especially if you can go to court and contradict what is being said by date and time. The fact that you also have a notion of date and time of how things happened indicates a certain clarity of mind. You must not have a clarity of mind. So it must be both accidental and complete and by complete you understand it negates, it annihilates the power, your power to understand or your power to will. If it is both accidental and complete then you have the first formulation of the difference of insanity. - So it negates the mensurias usually. - It negates the mensurias. Exactly those, the capacitors are the intended capacitive of the voileire. Other two, building blocks required for you to form a mensuria. Without them you can't form a mensuria. However, the defense of intoxication gets slightly more complicated further down because there is another formulation of a form of intoxication which is so extreme that as the result of which you become insane and the law will accept that. But again, if as the result of the intoxication you become insane in defining insanity we must refer to section 33 of the law. Namely that it must affect your capacitor to will or to understand but it must be the result of a disease of the mind. So it's not temporary. So put together the intoxication must cause a disease of the mind which disease of the mind in turn affects a capacitor to will and to understand. Therefore we are speaking of a form of intoxication which is so extreme that causes disease of the mind. For instance, a case of brain damage that the habitual use of a drug ultimately causes some form of brain damage. As a result of that brain damage you would lose a capacitor to will or to understand. And that particular case you have intoxication giving rise to insanity and therefore a defense to a criminal charge. The most complicated of all is one of the subsections which speaks about self intoxication. Because insanity goes further and says in cases of self intoxication the defense is not absolute. So the law will still provide for some form of responsibility but yet the law understands or appreciates the fact that there can be situations whereby the intoxication although it does not negate completely your capacitor to a former criminal intent, affects it. And the law will tell you that in all cases of intoxication including therefore those of self intoxication you can still raise a defense. If the level of intoxication is such that it might affect your capacity to form an intent specific or otherwise. Specific or otherwise. So this is different now. So we're talking of any form of intoxication even self-induced. That was not telling me that I accept that you have committed no crime and there was no intent. But if it is true that we punish you for the intent you actually formed and the actus raise you committed coupled with the intent you formed I must always refer to the intent you formed. And the law's acknowledging a situation whereby you may be intoxicated to such an extent that although you have criminal intent, MNSREA, you don't have the total mental power to commit for instance an offense which requires a specific intent because a specific intent requires greater mental intoxication or greater mental capacity, greater mental clarity. So you can have a situation where a person is killed but the person was so drunk when killing someone else that it cannot be said that he formed a specific intent to kill he could hardly stand up. It was not accidental because the homicide was committed with his hand holding a knife. But can it also be said that he had the clarity of mind to actually form an intent to kill this person, not even being able to stand and he fell over this person? Neither. So in that particular case you are responsible for your acts but we must look at the effect of intoxication on your brain and there are various judgments which have found guilt but reduce the intent from a specific intent to a genetic intent which changes the nature of the crime and has a direct effect on the punishment and also instances where the court went from a genetic menswear but voluntary to negligence, to culpa stating that that level of intoxication can give rise all to negligence but not to a voluntary act because they will not let you off the whole complete thing saying that you get a complete acquittal but they have slid down from specific to generic and in case from generic even to culpa to negligence. This movement downwards obviously has a direct impact on the severity of the crime committed and consequently also the punishment to which you would be supposed to do. Perfect. Now let's move on to more shared criminal responsibility which would be complicity. Can you tell me what the differences between a principle and a complex and instigator and a facilitator? No. The notion of complicity is very important. Why? Because we believe that a person is convicted, a person's health responsible on the basis of the famous principle of actus non-facil treunici mensitreia which means you can't be found guilty for your actions until and unless they are coupled with the criminal intent to commit the crime. But this is individual responsibility. I hold you responsible for the act you commit with intent to commit the crime. What happens when you have a plurality of offenders each pitching in to commit the crime? Question number one. Do I multiply the responsibility or do I divide the responsibility? Do I divide the punishment between them? So if I have 30 years and I have three persons, do I give them 10 each saying this is one crime committed, one person was killed. And therefore that gives rise to one punishment. Do I divide it? And how do I divide the responsibility on the basis of mensire? Do I say, ah, he got the knife. So he's got that part get it in. He got the car. He dispose of the corpse. How do I get to the three of them? If each of them committed only a part of the crime? How do I extend the one crime, the one definition of the crime to a multitude of players? To be able to do that? You need the theory of complicity, which has the legal effect of multiplying each element of the offense by the number of persons participating. So I apply the crime with respect to each individual respectively. And I multiply also the punishment with respect to each individual respectively. So this is why complicity is important because otherwise I cannot find guilt in a number of individuals which together have committed one unitary crime. So I multiply that crime by the number of participants. Simple enough. The next question is, but what links them together? So I will, if X is committing a robbery, a hold up in a store. And you are asked, you happen to be in the store and one of the robbers who does not identify him as a robber is he, we quite a well-meaning individual, but he has just robbed at gunpoint the store asks you to keep the door open. And you do out of a sense of respect, of what a fort every reason. And you facilitate the for the escape of the robbers. Are you an accomplice crime? Why not? What? You don't have the intent to do it? Exactly. Now the intent is not as I said the intent to commit a crime with something else. In complicity the link becomes the intent but we call it the common design, something more than just an individual intent. What is the common design? The common agreement, the share, the agreement for us to commit this crime. And therefore we are all linked by this common design, which is what? That we all are acting together in furtherance of committing the crime. That is our common design, our common agreement. We are all doing our little part in this jigsaw puzzle, but we are all acting in tandem together to make sure the crime succeeds. That is the common design, which links us all. So if you held it door because you had a pre-arranged agreement to hold the door open for them to escape, you become an accomplice. But you accidentally assisting them, even though you materially assisted them, does not make your accomplice because you did not enact in furtherance of assisting them in this common design. That's a second element. The third element is we must identify your participation in the crime. And there are two main actors here in complicity. You have the principle and you have your accomplice. Now let's make sure we do not confuse these two. The principle is always the individual who materially executes the crime. The person who pulls the trigger, the person who stabs. The accomplice is the person who in any way shape or form facilitates or commands the principle to commit the offense. So if A instructs B to commit a crime, A, the person commanding the crime, is the accomplice B who pulls the trigger is the principle. If A in any other way shape or form facilitates by providing the means or the weapons or straightens the will, is the accomplice. The person who actually kills, robs, steals is the principle. So that is very, very important. And I say this because sometimes it's confusing when you have a lot of people committing the crime and others instructing. Yes, you can have co-principles and co-accomplices because you can have somebody who instructs the plan, the mastermind, professor in the famous series, not to make any adverts or serious, who instructs the crime, was the brains behind it, others who might facilitate by providing blueprints, by providing weapons, technology, getaway cause. Those are accomplices but then you have the principle who is actually committing the crime per se and you can have a multitude of both. They are accomplices and co-principles. Now, so the principle is simple enough, the personal material executes the crime. Fantastic. The accomplice is a person who assists. The assistance can take two forms. This assistance can be moral or it can be physical. So moral participation as an accomplice would include instances where you instruct or command the commission of a crime. Instances where you instigate the crime or where you incite the commission of the crime which are different. We go to those that detail also greater than during lectures but incitement and instigation are different. There's a physical way of participating by either providing the weapons or the means to be used or there's a general umbrella provision saying that in any other way the law keeps it general and wide in any other way facilitates the commission of the crime. There's a lot to be said on how these actually penal these forms of assistance but generally speaking the way you become an accomplice is by one of these. By model of physical participation and each one has its own complexities. So I'll say what is a command must be accepted obviously because there's a link between the two because if there's no offer and acceptance then the principle is acting alone. This is just mere suggestion. Equally the weapon if I provide you a weapon and it's a physical mode of participation has to be used. I can't give you a gun. I leave that home, commit the crime nonetheless and say that weapon was used because technically the element of facilitation on the crime is essential. It must be shown that you have some way contributed and facilitated the commission on the crime because it's ingrained in that system but even the use can become quite particular because even using a weapon has a wide interpretation. It doesn't necessarily mean that the gun has to be fired on the scene. The presence of the gun, our courts have held, is a form of use. So it's quite complicated but here we are just touching the surface. So I repeat for complicity you must have a plurality of individuals all participating in the crime linked by a common design. The principle is the person who is actually material committing the crime. The accomplice is facilitating the principle in this endeavor. My moral means or my physical means. Attempt is almost guaranteed to appear in exams. What is the legal threshold between mere preparation and an actual attempt? Mela, whether it would be in this paper or not, I can't really confirm obviously it's still early days. But attempt is another very important and interesting theory principle. Why? We punish individuals for committed crimes, for crimes which have been consummated. We say crime is just consummated. Not consumed. The consumed food. The consummated crime. for the crimes you actually commit. But what happens when you try and fail? Can we punish you? I mean, the fact alone that you try to shoot someone and that someone you try to shoot is testifying against you is the epitome of your failure. He's actually become a witness in trial against you. But can I convict you of homicide if the victim is live and thriving, probably alive and thriving more than you? And this is why attempt is important, because the ledges later, and jurists before that, realized that the fact alone that you have attempted to commit the crime and failed is something which is reprehensible, is something which needs to be punished. And therefore, this gave rise to the theory of attempt. So in the theory of attempt, criminal law is extending responsibility for actions which do not constitute the completed crime, because trying a crime is equally wrong. It is equally something which needs to be repressed. But how do we do it? When can we say that you have attempted and failed to commit the crime? So if I ask you if you want to commit a crime, say, the classical example I always give is awesome, you want to commit the crime of awesome. And a leading supermarket has a special offer on Jericans. And I say, "Ooh, that's interesting. I want to buy a couple of Jericans." And he goes to the supermarket, and he goes to the cashiers, and you're purchasing three massive Jericans. You're in 10th, or it's was to fill these up with an accelerant to be able to burn someone's house down. Bravo. And a police officer walks up and says, "Mm." Now she's buying Jericans. I don't like that. Can the police officer arrest you in the radio to court? No. Because it cannot be said that you have attempted to commit awesome, even if at the back of your mind, the purpose of you purchasing those Jericans is the first step towards committing the attempt. Why? Because your actions are far removed from the attempt to be considered punishable, because at the end of the day, you will go to jail for the attempt. But why, jail you because you bought Jericans? But if that is true, at what point do I draw the line? And I say, you have committed an attempt. Let's take another example. I walk in and I see you at a proper license, the gun shop, buying a licensed gun. All of everything above board. Can I arrest you if your paperwork is in order for an attempt on the side? No. No. But between that moment of in time of you purchasing the weapon, do you actually point the weapon at someone and pulling the trigger? At what point in time between that and pulling the trigger or the bullet leaving the barrel of the gun, can I say that you have committed an attempt? Because surely, at some point in time, I can stop you on the basis of a punishable attempt. The fact that the bullet has left the cannon might be slightly too late to stop you. Obviously, if the bullet leaves and misses, there's no doubt about it. That there's an attempt if you miss. But do we have to leave it so late? But at what point in time is it when you put the gun in the car, when you drive it home a week later, when you leave on the morning for you know, you're going to kill someone? When exactly can the police intervene and say, this is a punishable attempt, I'm going to arrest you and you're in the court. Do I have to actually wait for you to shoot and miss? And say, all right, thank God you missed. Because now, can I arrest and they can't go out? No. And this is the million dollar question. If you look at the section of the law, the law clearly identifies these situations. Now, in Latin, we say that this is the eta creaminess. Eta cream is the journey of a crime. The journey of a crime has four distinct steps. You have the intent. All starts with the intent to come to crime. The intent, the preparation of the crime, the attempt of the crime and the consummation of the crime. Those are the four steps of this journey. The intent, the preparation, the attempt, the consummation. The attempt is not punishable. Actus non facetrayonisim et cetera. I cannot punish on the basis of mens re alone. I must have an actus reo's. The preparation is a form of actus reo's. But it's still far removed. The attempt is clearly identifiable as now a punishable instance, the consummation, no question about it. You've satisfied all the requirements of the law to be found guilty. And this is laid out clearly in the section of the law dealing with attempt. Because the law speaks of a novot act, whenever with intent to commit a crime, the law says, you commit an overt act and overt act is an external manifestation of your intent, which could be by a mission or by commission. It's no different. An overt act, an external act, identifying your intent. But followed by the commencement of execution of the crime, not the completion, the commencement of execution of the crime. So the law in respecting this ETL criminal using now the lingle of the law tells us that the landmark points are the intent, the overt act manifesting an intent, which I refer to as the preparation, the preparatory act, followed by the commencement of execution of the crime. That is the third stage, the attempt. Because following that, next thing is the consummation of the crime, the completion, the fourth step. What is difficult, as I've already highlighted, is how do I distinguish acts of preparation from the commencement of execution at moment in time when you stop preparing and you start executing the crime? In most cases, it's simple to identify, especially where you have tried and failed. But in trying, in building that sequence up, sometimes it is not that clear. And certain crimes are more difficult than others to prove. And this is where students need to focus more. Because we have jurists to help us identify with a number of different theories. And we obviously use cararas. Definition, no surprise there. The second theory, because even carara reformulated these theories on how we distinguish preparatory from commencement of execution, it's rather complex for me to explain in this podcast. But it's important that students realize that the theoretical underpinnings laid out by carara in defining preparatory from commencement of execution are crucial. So whenever you are answering questions and an exam, you don't tell the exam in a "yes" by the way. Carara actually has to theories on this. No, no. If cararas theories help us distinguish between the overtakt and the commencement of execution, and therefore when it is created, a student has to know all the theories inside out. Because if you are being questioned on what is a punishable attempt, you need to know the theory, and you need to know how to apply the theory. Because it's in the theory that you get the answers to what distinguishes a preparatory act from the commencement of execution, as a result of which there is no consummation. But the last element, for the first problem we have with attempt, is distinguishing the preparatory from the commencement of execution. That is when you have a punishable attempt. Carara will help you guide you with different theories on the matter, and these will be dealt upon in greater detail in the lecture. But the second problem we have with an attempt is obvious. You do not have a completed crime. But there are two ways in which a crime cannot be completed. You can fail to commit a crime because you either choose not to finish it. We call that voluntary resistance. And on the other hand, situations where they are completely accidental and independent of your will, something which frustrates you in the commission of the crime. And they are fundamentally different. Where you are frustrated in completing the crime, you are punished for the attempt. Because as far as you are concerned, you would have continued with that crime. You would have finished that crime. But something stopped you. You shoot a bullet, a huge gust of wind, comes and moves that bullet by 2, 3 millimeters missing the mark. You shoot and, as we've seen tragically, photos and videos recently in the later story. terror attack which hit Australia, somebody actually at some point in time, the total attempt that's a complete crime, but he could have gone on and his intent was to cause greater damage. He was frustrated. So what did they say that somebody stopped the plan prior to? At the same time German authorities were reported and they foiled the possibility of an attack on another Christmas market. They were frustrated. They were stopped in the tracks. So where you are tackled to the ground physically or something independent of your will occurs, wind, your gun fails at the moment in time, the mechanism gets jammed, those are situations where are completely independent of your will. You have a complete attempt. But then there is a volatile resistance. When you have a change of heart. When you decide from the bottom of your heart not to continue with the crime. That the law states that when violent resistance occurs, you will not be punished for the attempt. You will be punished for any crimes you may have committed until that stage. Therefore, if you have used an unlicensed weapon and stolen a car to commit the crime, you are guilty of theft of a vehicle and carrying an unlicensed weapon. But you will not also be charged with the attempted homicide of the victim where there is voltage resistance. When you decide to walk away. And if you commit no crime until the moment in which you try it and walk away, you walk away completely. Tell me why, simple enough, because the law still needs to create an incentive for an individual to walk away. Because if they did not create that incentive, what incentive is that for that would be criminal to stop? Say, listen, if I'm going to be in any case punished for what I've done so far, might as well finish it and get rid of the sweetness. So that the law is there creating a positive incentive for people to resist as far as it's possible. Obviously, sometimes the line is not easy when you resist and when you decide when it's a fortuitous frustrating cause. And I give you a simple example. You want to shoot and you hear the sirens of the police of the police in the background and you decide not to continue. Now is that a case of voltage resistance or a case of frustration? You know, the answer. Just get scared. If you scared and walk away because you feel to get caught, that is not a resistance because you would have, could you have sort of true change of heart? But we will go through all these scenarios. A voltage resistance is a no-punishment scenario whereas a fortuitous case which simply frustrates you, lands you with an attempt. Obviously, the attempt must be capable of fruition. And therefore, the law, jurists also speak of an impossible attempt. And I always give the example. You shoot at someone who's already dead and it is shown that this person when shot was already dead. As far as you are concerned, you killed him because he was giving you a back. He thought he was asleep. On the couch, you shoot it from the back. But it was already dead. Now is that an attempt? Slavet. Still the intent was still there to kill him. By the way, punishment intent alone? No. So that is an interesting question to consider. The answer to the scenario would be, well, that could be tantamount to an impossible attempt because you're trying to kill somebody who's already dead. You cannot. But this is something we will discuss. But the impossible attempt is that if it is shown that the crime is impossible to commit in any way, shape or form, you cannot commit to the attempt because it's impossible to commit. Like, try to steal something which has been destroyed. Even if you try a million times, you can never do it because it doesn't exist anymore. It's been destroyed. So the possibility of success in your endeavor must always be built because we do not only punish on hypotheses or abstracts, we punish on the basis of actual danger posed to society. So moving on to something that links directly into the past two topics. We have conspiracy. Conspiracy often confuses students more because liability arises very early on. What elements must be present to prove conspiracy under our more deas law? Conspiracy is an offense. Or as an offense, yes, which has a rugged origin, was first restricted to only selected offenses. We find conspiracy for instance in the criminal code. Traditionally, an offense against the state, so conspiracy to commit coup d'état or insurrection. Obviously, there's a historical background. And we also had conspiracy for a long time in the cases of drug trafficking. Under the dangerous drugs ordinance for the medical Kindred and Profession's ordinance. But then conspiracy was opened up and it can be the precursor to any crime punishable by imprisonment. Conspiracy is not a continental doctrine, well, at least the way we have imported it is from UK law. And therefore it is slightly elfitting in our jurisdiction because it's an alien provision. And by alien, it is coming from a jurisdiction which does not embrace carra steery of criminal responsibility. Remember, another criminal code is designed to work on carra a steery of criminal law of dollars and culpa, that famous theory. But UK don't have carra. Carra was Italian, they are British, obviously they're going to quote Italian jurists. So they do not accept carra because they don't even know carra is quite frankly. So their notions that philosophical underpinning of criminal law is completely different from others. And we're importing a principle of conspiracy from that system into our system. It's just like trying to import an app from an iPhone and trying to install it on an Android. It's that different. That's why it's alien. And it doesn't fit well. But in theory, conspiracy is the agreement of two or more persons to commit a crime. That is the common law definition of conspiracy. And then our law is a bit more than that because it is the agreement of two or more persons to commit a crime, manageable imprisonment. But also an agreement on the mode of action. So you must both agree to commit a crime. But you must also agree on the mode of action required. How you are going to commit the crime. So it's user saying, "Aver, you know, there's the producer here. You know, show me something that the producer is a bit nice to us. So I don't know. But still, you know, we're even. That agreement per se still has not hit the mark of a conspiracy because I thought only agreement on a crime and the mode of action are, you know how we shall do this, that and the other to her, on that day at that time. Fantastic. We agree. So in order for you to have a conspiracy, which is punishment in terms of our law, you must have an agreement of two or more persons to commit a crime, punishable imprisonment. That is the scope. And you must have an agreement on the mode of action. And I say this is alien because trying to identify the act of stress and the menswear in these four elements is not easy because they are rather intricately linked. What is the act of stress and what is the menswear here in the elements I've just given you? So there's the agreement of two or more persons to commit a crime, punishable imprisonment and an agreement on the mode of action. It is the agreement itself, which is the crime. Well, we say the intent to commit the crime is the menswear and the act in whereby we agree in this intent, which could also be by a show of science, is the act of stress. It's a very ill fitting. But we need it to be able to import it in our system. But it's an artificial imposition on this definition, but it works. Now, conspiracy is important because it is extending once again, criminally responsibility now, not by number of individuals, but by time. So if an attempt comes before the consummation, because you've attempted and failed, conspiracy comes at the moment in time before attempt, because in the ETL crime, this is the intent, the preparation, the attempt and the completion. In the conspiracy, we've moved back two steps, we're talking on the intent part, something more than intent granted, because it is the intent to commit a crime and an agreement on a mode of action. But I don't even need any preparation in furtherance of this agreement. So the fact alone that you and I have agreed to commit a crime and we shall commit it x, y and z is enough to found conspiracy. I don't need also to show that once we've agreed on the crime and how to commit it, I have committed any further action even by a preparation. And conspiracy tradition has come to drug trafficking to us. Why? Because the fact alone is a criminal network, which has agreed to traffic drugs from system to multa, Thank you. Yes, we'll carry it by car on a ferry. That is conspiracy to import drugs. I don't have to show that I've rented a car, or that I've bought tires to hide the drugs and tires, as it was customary. Or in the double-lining of the vehicle, because that's a preparation which goes further from the conspiracy. But this was necessary because there were situations, especially in drug trafficking, where people were arrested. Or the police wanted to intervene to stop the transfer of drugs. But they acted too early. I mean, they know there is a clear agreement for drugs to be imported. They've got all the evidence, because they've tapped their phones, they've tapped. Whatever they have, they have interceptions, they have whatever. The data they need to show that there's a limited number of drugs. But must they actually wait for the drugs to go into the tires and for them to actually go on the ferry, even if they don't arrive yet in Malta, to be able to arrest, maybe too late, it might fizzle out. So the element of conspiracy now creates this punishment for the agreement to commit a crime, provided evils who agreed on the mode of action. So it extends the responsibility further earlier in the eater criminalies, in this journey to commit a crime. And this is why this is important. Punishment is slightly more reduced. So if in attempt you are exposed to the punishment of the completed crime reduced by one to two degrees, in the case of conspiracy, you're again exposed to the crime of the offense reduced by two to three degrees, because it is further away from the consummated crime. The difficulty which arises in practice with the offense of conspiracy is how do we define the agreement on the mode of action? When can we say that we have actually agreed on the mode of action? And there are two schools of thought. Some say it must be very detailed. Such that nothing is left to chance. I'd say, no, I don't require all that level of detail. A simple agreement is enough. But what is a simple agreement? Do we do that to the producer on a Saturday, yet to be decided? On a rainy day? Would that suffice? And judgements tend to fluctuate in their interpretation of what this means. Generally speaking, it is defined at the moment in time where no further discussions are necessary, because generally, no, what to do, and the next step, is going into action. But in the lecture, we'll go into greater detail to trying to define what this actually means in practical terms. And can you have attempted conspiracy and also be conspiring in an attempted crime? So you can't attempt a conspiracy. Because if conspiracy is our agreement to commit a crime, let's say you and I decide to commit a crime. And the producer wants in. She can't attempt to join us, because she's right in or out. So if she said, can I join? I said, no, go get away. We don't want you. She tried, but she failed. So if you do commit a crime, she can't be found guilty of attempted conspiracy, because you're right in or you're not. But conspiracy then, once we've established it, we are co-conspirators, because we've agreed to commit a crime. They need something else. The fact alone that we've conspired means that we must conspired to commit a crime. Attempts are completed. But the conspiracy per se is punishable. I don't require an attempt. Once we've established that we are conspirators, the conspiracy per se is punishable. I don't require any acts in furtherance of those actions. Now, the obvious confusion arises between the interplay, the dance, between attempt and complicity, rather conspiracy. So let's not confuse. Attempt is when you try to commit the crime and fail. Complicity now goes one step further. Conspirators are persons who sit together and agree to commit a crime. Conspirators can become accomplices. If now, we are not speaking merely of the agreement, but now we're committing the crime. We've moved forward. We are not conspirators anymore. We're accomplices in crime, because we're doing it. And therefore, the question always arose. Can you have complicit an attempt? Obviously you can. Because if we are trying to commit a crime and we fail, such that I try to rob a bank, but I get arrested the moment in which I break the frandal. We are all guilty of attempted theft as aggravated by whatever aggravations I've committed. Hold up. So that would be complicity now, because we've commenced the execution of the crime. We've moved away from conspiracy completely. Now we're executing the crime. So we're speaking of now complicity. I can be an accomplice to both the attempted crime and a completed crime. But can I attempt complicity? The answer is no. On the same reasons I can't attempt a conspiracy. You are either helping me and you are in or you are out. If you are out, you can try to join us in our criminal endeavour to commit the crime. But you are never part of it. So attempted complicity is not a thing. You're right there. Are an accomplice or you aren't? Now let's bring everything together. What is the difference between Dollo and Kulpa that we're mentioning so often? The theory of Dollo and Kulpa is very important. I can't stress the importance to students to know the theory of Dollo and Kulpa, because it is the unwritten rule which powers the whole criminal code. It's what honestly distinguishes a lawyer from a layman. Because it is the unwritten rule. So when a lawyer reads through the criminal code, with the knowledge of the Dollo's Kulpa theory, the lawyer will give one interpretation, one particular interpretation to the provisions of law. An interpretation which a layman can never give, because a layman does not know the theory of Dollo's Kulpa. And the theory of Dollo's Kulpa, I'm going to be very clear, powers all criminal law. If you don't know the theory, you simply don't know Kulpa law. So give up on Kulpa law. If you don't know the theory of Dollo's Kulpa, it is the heart which powers the whole system. Because it is the fundamental block as to why you are held responsible. And our law does not refer to Dollo's Kulpa explicitly, but the sections of the law are drafted with that in mind. So I'm being very clear. Now Dollo's Kulpa are the two instances where we can found criminal responsibility. We speak of the act of chaos in the menswear. I shall not repeat it. You have the external act which is the crime, coupled with the intent, the menswear to commit the crime. Once you're married, those two, you are exposed to criminal responsibility. The question now is, when will open up your menswear? How do you hold your responsibility? As I said, the menswear has two fundamental building blocks, the capacity to understand, the capacity to will. And those are the two building blocks, which power the whole notion of Dollo's. Because the moment in which we accept that you have acted voluntarily willingly to commit a crime, we accept that you have committed an act of Dollo. That is the Dollo. It is the theory which establishes how and when you form your criminal intent, your menswear, with the two capacities which you were born with, the capacity to will and the capacity to understand. If you don't have these, you get the defenses. If you don't have these, you might look at minority because you are still developing and we understand that those the capacity are still in development. And therefore they might be defective. This is why it turns out the heart of all defenses and criminal responsibility. Because we are speaking about the human capacity to form a criminal intent. And once you do form a criminal intent, a positive criminal intent which will be director and direct, then you have acted voluntarily in a Dollo's capacity because you can have a generic intent. You can have a specific intent. And Karara opens this theory up with positive direct intent, negative indirect intent. And all the its formulations. Now those options speak of the voluntary intent to commit a crime specific or generic. Such that you are convicted because it is shown that you've committed the act and you've acted with the required intent and you willingly committed the act. That is Dollo's. But there are situations where you commit a crime. Yet you did not want it or you do not will it. But this is problematic. And this will be culpa. But why are you found guilty on negligence? Why? Why should we find guilty of negligence? Because you could have foreseen it. Now that revolves on forcibility. So you are overspeding and you hit a pedestrian crossing on a zebra crossing. Did you see the pedestrian? No. Did you. No, there was a zebra crossing there. No. So my next question is, can it be said that you wanted to kill someone? No. How can you want to kill someone if you did not foresee the possibility that that could happen because you have gone completely unaware of zebra crossing and you were completely unaware of the pedestrian? You can't will something you are unaware of. So are you punished? Well said, it is under dollars because if dollars requires you to form an intent to commit that crime and want it, in this formulation I've just given you, it can't work because you can't want something you have not foreseen. You could not have foreseen it because you were tired. You could not force it because you couldn't care less. You did not foresee it because you were drunk, all are wrong. But you did not foresee it. But as I just said, what you've done is wrong. And you do not walk away from that scene because you've taken a life. And this is where, therefore, we have the theory of culpa, the second formulation under which we hold your responsible, but this now has nothing to do with your voluntary intent to commit a crime but rather your mental state that we will not accept a standard of behavior which gives rise to these situations. You have fallen short of the standard of care which is expected out of you in conducting the activity you did. The bonus battery is familiar. Exactly. So if you are driving a car, we expect you to follow the rules. We expect you to drive diligently and we expect you to be attentive at all times. We expect you to be drunk because the moment in which you do, you might have not wanted that debt but you certainly caused it through your negligence. So negligence is not a state whereby you intended to commit the crime. It's a mental state whereby you couldn't care less or you broke the rules as a consequence of which a crime has been committed, an offense has been committed. A crime which could have been avoidable had you been more careful. Had you in law, we refer to the bonus battery family as the head of the household. That is the dress mark. A prudent person. A prudent person. Not somebody who makes no mistakes but a prudent person. Would a prudent person be driving twice over the speed limit? No. Would a prudent person be driving in a state of intoxication? Absolutely not. Equally, if you are passing through an inhabited area, would a prudent man step on the accelerator? No. Because the possibility of somebody trying to cross the road wrongly is high. And we all know that. So a prudent man would be cautious and we expect caution out of you. Not only in driving, in whatever we do. If you are hoisting a crane and handling large objects, a prudent man would take all the safety precautions necessary for something false and kill someone. And you were careless in the way you did it. That is not what we are. And therefore that you are punished not for what you intended, but for your carelessness, for your negligence. That is the theory of culpa. If on the other hand of the spectrum, on the other side of the spectrum, it can be shown that not even a prudent man could have foreseen this very particular psychocamstance, then it becomes an accident. But the next in this situation whereby something happens, you did not foresee it, but no prudent man could have foreseen this very conscious. It was one million, you know, such that you were driving and your car broke down, your brakes failed. And this brake failure has nothing to do with you. But a glitch in the car, which the manufacturer did not know about. There is something which is impossible for you to predict. That's not your fault. In the new way, shape or form, no prudent man could honestly predict that. But would this still be liable for some sort of criminary responsibility? Not if you can show that this accident occurred to something which no prudent man could ever predict. I'm giving you an example of a mechanical failure, which develops, which not even the manufacturer knew. Sometimes that's why there are recalls on vehicles sometimes because the nero occurs. And then when the manufacturer would not have provided for it, so it needs to recall the vehicle to correct it. Use these recalls are done also as a rather over-accent which not happened. And that would be an accident. That is why you were not responsible. But the theories of dollars are called a "resential" because they power every single provision of the criminal code. And as to why you ultimately are responsible for the substantive crime, which is then legislated upon in chapter 9 of the laws of the motor. Excellent. And we covered a lot of ground today. Thank you very much for your testimony of Letti. I thank you for your hard work and also I in S.L. We hope we use this podcast as our roadmap for revision and also practicing applying these principles under time pressure for your exams. Good luck everyone who's listening for your exams and we'll see you in the next revision session. [BLANK_AUDIO]