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[(2021) 8:1 JICL 53–86]
PRIOR-FAULT BLAME IN ENGLAND AND WALES,
GERMANY AND THE NETHERLANDS
Anna E Goldberg,* John J Child,** Hans S Crombag***
and David Roef****
* PhD candidate at the department of Criminal Law and Criminology, Maastricht University, Bouillon-
straat l-3, 6211 LH Maastricht, the Netherlands. anna.goldberg@maastrichtuniversity.nl. Her research
on addiction in criminal law focusses on the compatibility of current legal practices with neuroscientic
information and perspectives on addiction. Additionally, she addresses the application and eects of
neuroscience in criminal cases that are concerned with addicted defendants.
** Reader in Criminal Law at Birmingham Law School, University of Birmingham, Edgbaston, Bir-
mingham, B15 2TT, UK. He is also the Co-Director of the Birmingham Centre for Crime, Justice and
Policing, and Co-Director of the Criminal Law Reform Now Network. j.j.child@bham.ac.uk. John’s
research interests centre on criminal law theory and particularly the internal structuring of oences and
defences within the general part, where he has published widely.
*** Associate Professor in the School of Psychology & Sussex Neuroscience, Room 5.16, CRPC Building,
University of Sussex, Falmer, BN1 9QG, UK. He is also co-director of the Crime Research Centre
(CRC) at the University of Sussex. h.crombag@sussex.ac.uk. His research programme aims to under-
stand the psychological and neurobiological underpinnings of motivated action, the role of associative
learning and memory mechanisms in motivation, substance addiction and mental health, and applica-
tions of such understanding to criminal law and justice.
**** Associate Professor in Criminal Law and an extraordinary professor in Criminal Law and Neuro-
sciences at the department of Criminal Law and Criminology, Maastricht University, Bouillonstraat l-3,
6211 LH Maastricht, the Netherlands. david.roef@maastrichtuniversity.nl. David’s research interests
are primarily comparative substantive criminal law and neurolaw.
Abstract: 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 oences and defences, allowing a defendant’s previous
conduct outside of an oence or defence denition to directly aect his or her
liability. The paradigm example of this is prior-fault intoxication, where an
intoxicated defendant is found liable for an oence despite lacking mental
fault at the time of causing harm; with the missing mental fault eectively
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 eective and defensible methods for its application in
practice.
Keywords: prior-fault; intoxication; insanity; constructing oences;
blocking defences; incapacity; actio libera in causa; culpa in causa
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54 Journal of International and Comparative Law
I. Introduction
Where a defendant (D) is convicted of a criminal oence, they are judged on the
basis of their specic conduct and mental state at a specic moment in time. D
commits an oence, for example, when she takes property from a victim (V) with-
out permission. We may have some sympathy for D where her history provides an
explanation for her oence (eg circumstances of poverty or abuse), or we may be
hardened in our perception of D who has previously oended or otherwise acted
with bad character, but these previous circumstances are typically irrelevant to the
core elements of substantive criminal liability.1 The law’s focus is narrow for nor-
mative reasons, looking to evaluate D’s conduct rather than her broader character,
as well as for practical reasons, providing manageable targets for the machinery of
law (investigation, courts and so on). But the narrow temporal focus can also be
problematic, and additional legal mechanisms are sometimes necessary to prevent
apparently perverse outcomes.
An obvious exculpatory example can be found in certain criminal defences.
Thus, where D takes V’s property only because her life has been threatened by
a third party (X) unless she does so, the defence of duress will allow the earlier
conduct (X’s threats) to qualify and/or excuse D’s later oence (theft). This does
not mean that previous conduct or motive will always be relevant to establishing
liability, but it does recognise that an unqualied exclusion in all cases would not
be appropriate.2 Our focus in this article is on similar legal constructions, but this
time working in the opposite direction: “prior-fault” rules of inculpation. Looking
beyond the traditional narrow event focus of criminal evaluation, prior-fault rules
exceptionally allow D’s previous blameworthy conduct to qualify and construct
substantive liability that would otherwise be absent.
Take the example of Nadruku, a high-prole rugby league player in Australia,
who in 1997 became acutely intoxicated and severely assaulted two women in a
Canberra bar.3 Nadruku was charged with violence oences, but he was found by
the court to have been so intoxicated that he was not capable of forming the intent
required within the denition of the crime; Nadruku was therefore acquitted. This
outcome was (and remains) highly controversial and prompted predictable public
and political criticism of a legal system that allowed conduct described in the court
as “drunken thuggery” to go unpunished. And yet the case demonstrates nothing
more than a standard application of a fundamental legal principle: where vital ele-
ments of an oence are missing, people like D cannot be convicted of it.
In a minority of criminal jurisdictions, this is the end of the story; we may
feel intuitively uncomfortable about Nadruku’s acquittal, but such intuitions are
1 Each may be separately relevant at sentencing or in demonstrating evidence of propensity.
2 See William Wilson, “How Criminal Defences Work” in A Reed and M Bohlander (eds), General
Defences in Criminal Law (Oxford: Routledge, 2014) p 7.
3 SC Small v Noa Kurimalawai, Australian Capital Territory Magistrates’ Court, Matter No CC97/01904,
22 October 1997.
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Prior-Fault Blame in England and Wales, Germany and The Netherlands 55
not sucient as reasons for deviating from the event-specic focus of criminal
law.4 In most jurisdictions, however, including those at issue in this article, various
prior-fault rules have been developed to nd liability in examples of this kind, rec-
ognising D’s lack of capacity when causing harm at time 2 (T2) but blaming D for
creating the circumstances of that incapacity when becoming intoxicated at time 1
(T1). Liability is established by widening the focus of the criminal law to include
both T1 and T2 events.
Prior-fault rules have developed across the full structure of the criminal law,
creating liability that could not otherwise be established. This includes oences,
where prior-fault rules may allow blameworthy conduct at T1 to substitute for
missing oences elements at T2;5 applicable not only to cases such as Nadruku, but
also beyond voluntary intoxication in cases of negligent misuse of medication, for
example.6 Prior-fault rules may also qualify the application of criminal defences,
where an otherwise available defence at T2 might be excluded due to D’s con-
duct at T1, including cases where the circumstances of a defence are contrived (eg
where D provokes V to enable “self-defence”), or D acts on a mistaken intoxicated
or delusional belief.7 Likewise, when (in civil law jurisdictions) assessing unlaw-
fulness and blameworthiness, D’s ability to claim a lack of capacity at T2 will also
be subject to her own potential fault at T1 in creating that state.8
But despite the potential reach of prior-fault rules, even within the most mature
legal jurisdictions, the systematisation and detail of such rules have remained prob-
lematic, with ongoing uncertainties as to fundamental questions of scope and oper-
ation in practice. As we discuss throughout, this includes basic questions about
what triggers the move to T1–T2 prior-fault analysis, what must D do and/or fore-
see at T1 to establish prior-fault, what causal or intentional links (if any) must exist
between T1 and T2 events, how far back can we go to nd T1 fault and so on. These
are dicult questions for the law to answer, but, given the function of prior-fault
rules in creating independent routes to criminal liability, a lack of clarity here is
not acceptable. The questions are of course common across each of our focus juris-
dictions, but the answers provided by each (however incomplete) are often quite
dierent.
Within the present article, we critically explore the use and understanding of
prior-fault rules across three criminal jurisdictions: England and Wales,9 Germany
and the Netherlands. English law maintains a classic common law approach to pri-
or-fault, with relatively few developments since the seminal case of Beard in 1920.10
Within this system, prior-fault rules act as powerful and blunt tools of inculpation,
4 Discussed in Stephen Gough, “Surviving without Majewski?” [2000] Crim LR 719.
5 Including certain mens rea elements and even a lack of voluntariness. Discussed in II. Blame across and
between Events.
6 Discussed in II. Blame across and between Events.
7 Discussed in II. Blame across and between Events and III. Intoxication and Prior-Fault.
8 Discussed across II. Blame across and between Events–IV. Prior-Fault and Mental Disorder.
9 References to “England” hereafter should be read to include “England and Wales”.
10 [1920] AC 479 (HL).
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56 Journal of International and Comparative Law
constructing routes to oence liability and blocking otherwise available defences.
Of particular note here has been a longstanding academic preference for the crea-
tion of a bespoke intoxication oence, presented as a viable model to replace cur-
rent rules and to more accurately label and punish defendants.11 Germany provides
for such a prior-fault “dangerous intoxication” oence in § 323a of the Criminal
Code. Yet, this separate criminalisation does not operate as a replacement for other
prior-fault rules (as debated in England) but rather operates alongside other more
general routes to prior-fault liability. The Netherlands provides an interesting per-
spective between both, modelled on the German civil law system, but approaching
prior-fault blame without a bespoke prior-fault oence.
Our article is divided into four sections, exploring and comparing structures of
prior-fault (Section II), the status of intoxication (Section III), the relationship with
mental disorder (Section IV) and the role/potential for a bespoke prior-fault oence
(Section V). There are obvious attractions to the comparison of these themes. Par-
ticularly where academic and reform literature has endorsed an approach that is
practised within another jurisdiction, it is clearly useful to understand how that
approach has functioned to take any lessons that may be learned from its design.
Comparative learning of this kind is the central theme of the article. However, a
comparison between civil and common law systems, particularly within such a
complex area, is far from being straightforward, with structural and terminological
mismatches providing for a great variety of traps for the unwary. It is for this rea-
son that we take time to consider each jurisdiction separately within each Section,
ensuring clarity within each as the comparative picture develops across the article.
We contend not only that important comparative lessons can be learned from our
analysis, but also that such lessons must be understood within each jurisdiction’s
unique criminal law context.
II. Blame across and between Events
Although prior-fault rules exist within each of our focus jurisdictions, the legal
structures within which those rules operate are quite dierent. Before drilling down
into particular debates and key areas of comparison, it is therefore necessary to
introduce the context for the law in each system. In doing so, we will identify where
and how prior-fault rules are applied as well as introduce the main areas of critical
debate.
A. Prior-fault events in England and Wales
English criminal law employs a common law bipartite structure, recognising a rm
division between the inculpatory role of oences (actus reus and mens rea) and
the exculpatory role of defences (whether excusatory or justicatory). Prior-fault
11 Discussed in V. The Role of Bespoke Prior-Fault Oences.
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Prior-Fault Blame in England and Wales, Germany and The Netherlands 57
rules, although commonly (and mistakenly) presented as “defences”, operate to
qualify the application of both oences and defences: (1) constructing the elements
of a criminal oence and (2) blocking or adjusting the application of a defence.12
In both, D’s blameworthy conduct at T1 is used to nd liability for an event at T2.
(i) Prior-fault in constructing oences
Prior-fault rules can be used to substitute for missing mens rea at T2, including
absent voluntariness.13 In practice, this is almost exclusive to cases of intoxication.
As we discuss in Sections III and IV, oence construction of this kind can excep-
tionally apply to non-intoxication cases of prior-fault automatism but has not yet
been applied in the context of insanity. In this section, therefore, we focus on the
structure of the intoxication rules only.
The intoxication rules provide a powerful tool for inculpation. If the facts of
Nadruku were to arise in England, D would be found guilty of an oence against
the person.14 Although D lacked mens rea at T2 when hitting both victims and per-
haps even lacked control of his actions, his voluntary consumption of a “dangerous
drug”15 at T1 would allow the court to nd liability regardless. As the House of
Lords made clear in the leading case of Majewski,16 “If a man of his own volition
takes a substance which causes him to cast o the restraints of reason and con-
science, no wrong is done to him by holding him answerable criminally for any
injury he may do while in that condition”. Statements of this kind—intuitively
plausible and policy-focused—are typical of cases discussing the application of
prior-fault rules. But more is required to understand precisely when and how such
rules will be employed to create liability.
To justify nding D liable for an oence as if he possessed mens rea that was
in fact missing, it is logically necessary to require normative equivalence between
D’s prior-fault at T1 and those missing elements at T2. And something of this is
identiable in the jurisprudence. When locating prior-fault at T1, for example, it is
clear that D must have acted voluntarily in taking the relevant risk (ie consuming
the drug);17 and D’s choice must also be blameworthy in that the drug taken must
be objectively “dangerous” (ie must be illegal and/or commonly associated with
erratic or problem behaviours).18 Following this, the fault constructed is not simply
used to replace any missing mens rea, but rather a distinction is drawn between
12 See John Child, “Prior Fault: Blocking Defences or Constructing Crimes” in A Reed and M Bohlander
(eds), General Defences (Oxford: Routledge, 2014) p 37.
13 R v Lipman [1970] 1 QB 152 (CA).
14 Most likely, in this case, an oence of Assault Occasioning Actual Bodily Harm (Oences Against the
Person Act 1861 s.47).
15 Dened broadly to include alcohol and other drugs associated with uncontrolled and/or aggressive
behaviour. See R v Lipman [1970] 1 QB 152.
16 [1977] AC 443, 474.
17 Discussed in R v Kingston [1994] 3 All ER 353 (HL).
18 See R v Lipman [1970] 1 QB 152.
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58 Journal of International and Comparative Law
“specic intent oences” that cannot be constructed (typically intention-based
oences) and “basic intent oences” where liability can be found (typically reck-
lessness-based oences). The basic/specic intent oence distinction is not repli-
cated in civil law jurisdictions, but it applies in England and other common law
jurisdictions as a method of qualifying the fault generated at T1 for equivalence
with missing T2 mens rea.19
Claims of equivalence, however, are not conceptually sustainable within the
current law. This is apparent, for example, in the inconsistent categorisation of
basic and specic intent oences in practice, where rules of thumb about prior-fault
not replacing missing states of intention are not always followed.20 More generally,
any claim of equivalence between prior-fault intoxication (ie objective foresight of
nonspecic future risks from T1) and missing states of recklessness (ie subjective
foresight of specic risks in action at T2) ignores fundamental dierences between
the two.21 Our claim here is that D’s prior-fault intoxication may give rise to legiti-
mate blame tokens, but these are not suciently comparable (let alone equivalent)
to those missing at T2 to make a simple substitution appropriate. The legal ction
created by the intoxication rules, therefore, treating D as if he possesses the req-
uisite mens rea at T2, is at best mislabelling D’s conduct where it is deserving of
liability and at worst over-criminalising that conduct where it is not.
Such criticisms have been inconsistently recognised by the courts but largely
dismissed. In Majewski, for example, the court was satised that despite prob-
lems of logic, “this is the view that has been adopted by the common law of
England, which is founded on common sense and experience rather than strict
logic”.22 And more generally, the underlying challenges have been disguised
by the inaccurate classication of intoxication as a form of defence (ie being
allowed to undermine mens rea for specic intent oences). This is problem-
atic because it wrongly implies that completing the actus reus of an oence is
sucient for inculpation and also because it obscures the role of intoxication in
creating the basic ingredients of liability rather than operating as a tool of excul-
pation.23 Within academic and policy writing, commentators have proposed to
either remodel the current law to achieve a more plausible case for equivalence,24
or contended that current rules should be abolished and replaced with a new
intoxication oence to more accurately target and label oenders for the wrongs
they have committed.25
19 Discussed in R v Majewski [1977] AC 443 (HL).
20 For example “intentional” sexual touching in Heard [2007] EWCA Crim 125 (CA).
21 See, eg, Rebecca Williams, “Voluntary Intoxication—A Lost Cause?” [2013] 129 LQR 264.
22 [1977] AC 443, 482.
23 See Andrew Simester, “Intoxication is Never a Defence” [2009] Crim LR 3.
24 See Law Commission, Intoxication and Criminal Liability (No 314, 2009) (hereafter LC314); John
Child, “Drink, Drugs and Law Reform” [2009] Crim LR 488.
25 See Law Commission, Intoxication and Criminal Liability (Consultation 127, 1992) (hereafter LC127);
R Williams, “Voluntary Intoxication” (n.21).
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Prior-Fault Blame in England and Wales, Germany and The Netherlands 59
(ii) Prior-fault in blocking defences
Prior-fault rules also emerge to impact the application of criminal defences, block-
ing or amending the potential for defences at T2 based on D’s previous conduct at
T1. Such rules can be divided into two categories.
The rst category of prior-fault rules relates to intoxicated mistakes and reects
many of the same policy intuitions discussed above. Essentially, in the context of
defences such as self-defence, where D relies on a mistaken subjective belief for
exculpation, D will not be able to rely on that mistaken belief if it was attributable to
voluntary intoxication.26 It is interesting that intoxication is singled out in this man-
ner from other potentially blameworthy causes for an unreasonable mistaken belief
(eg sleep deprivation), and the rule has not always been followed consistently.27
However, the rule has remained relatively uncontroversial in its application.28 The
preponderance of objective elements within criminal defences (ie holding D to the
standard of a reasonable sober person) also lessens the impact of the specic intox-
ication rule.
The other category of prior-fault rules relates to a collection of various exclud-
ing clauses, which operate to block D’s defence where he has either consciously (or
sometimes negligently) created the conditions of that defence. A narrow version of
the exclusion applies to defences such as self-defence, which asks whether D has
consciously manipulated the circumstances to engineer the “need” for defensive
force.29 There are conceptual challenges in dening an exclusion of this kind, but
such “grand schemer” scenarios provide compelling case studies in favour of pri-
or-fault rules. More controversial are negligence-based exclusions, such as those
applied to the defence of duress (ie excluding D’s defence if he voluntarily associ-
ated with individuals in circumstances where he objectively should have foreseen a
risk of coercion).30 Our main focus in this article is capacity-diminishing examples
of prior-fault. However, the inconsistent approach taken between defences lacks
justication.
B. Prior-fault events in Germany
There are three distinct dierences in the approach towards prior-fault events in
Germany in comparison to England. First, voluntary intoxication is primarily con-
sidered under the element of blameworthiness rather than mens rea, which means
that it can result in a (partial) excusatory defence. Second, to prevent impunity, Ger-
many has developed a twofold mechanism to hold intoxicated oenders criminally
26 See, Criminal Justice and Immigration Act 2008 s.76(5); R v Hatton [2006] 1 Cr App R 16 (CA).
27 See Jaggard v Dickinson [1981] 3 All ER 716 (DC).
28 See LC314.
29 R v Rashford [2005] EWCA Crim 3377.
30 R v Hasan [2005] 2 AC 467, [38] (HL).
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60 Journal of International and Comparative Law
liable: (1) prior-fault rules and (2) a separate intoxication oence. Third, concerning
contrived defences, dierent rules are applied for denying or limiting the defence.
(i) Prior-fault in the tripartite system: Voluntary intoxication
as a (partial) excuse
The German way of addressing prior-fault events has to be understood within the
civil law context of the tripartite structure of crime. For criminal liability, three con-
secutive elements have to be fullled: the statutory oence denition, consisting of
objective and subjective elements (actus reus and mens rea); the wrongfulness of
the conduct, which may be negated by a justication; and the blameworthiness or
guilt of the actor, which may be denied by an excuse.31 In principle, issues of pri-
or-fault may play a role for each of these tiers of criminal liability.32 For instance, as
we will see later, cases of contrived self-defence or necessity are prior-fault events
related to the wrongfulness of the conduct, while a constructed duress situation
raises the question whether this can still be an excuse.
Regarding voluntary intoxication, whether caused by alcohol, drugs or medi-
cation, courts favour addressing this problem at the level of blameworthiness rather
than mens rea.33 This is because intoxication as such—and not the resulting mental
condition such as a psychotic episode alone—can be recognised as a temporary
mental disorder falling under the excuse of incapacity of guilt, the German equiv-
alent of the insanity defence (§ 20 German Criminal Code (GCC)). Less serious
cases are considered a form of diminished capacity that could result in a mitigated
punishment (§§ 21 and 49 GCC).34 This is an important dierence with England,
where voluntary intoxication may negate mens rea but can never be an excuse.
This does not mean that an intoxicated state may never negate mens rea in Ger-
many. For example, due to a strict subjectivist approach to mistakes, a mistake
caused by voluntary intoxication may also negate intent.35 However, generally
speaking, this only occurs when the intoxication is very severe.36 Even when intent
is considered absent, the oence usually is replaced by its negligent variant. For
31 Johannes Keiler and David Roef, Comparative Concepts of Criminal Law (Cambridge: Intersentia,
2019) pp 114–119.
32 Walter Perron and Bettina Weisser in Schönke and Schröder, Strafgezetsbuch (“Criminal Code”)
(München: Beck, 2019) § 20, Mn. 34.
33 Markus D Dubber and Tatjana Hörnle, Criminal Law. A Comparative Approach (Oxford: Oxford Uni-
versity Press, 2016) p 285.
34 Isabel Stassen-Rapp, Die Behandlung von Selbstverschuldeten Rauschzuständen im Angloamerika-
nischen Strafrecht—Vorbild für eine Gesetzliche Regelung in Deutschland (“The Handling of Self-
intoxication in Anglo-American Criminal Law—A Model for Legal Regulation in Germany”) (Baden-
Baden: Tectum, 2011) pp 275–285.
35 Jeroen Blomsma, Mens Rea and Defences in European Criminal Law (Cambridge: Intersentia, 2012)
p 264.
36 BGH, 24 February 2010, NStZ-RR 2010, 214. We should also note that in Germany, intent has already
a much lower threshold in comparison with England, as it includes conditional intent, that is, the condi-
tion of being aware of a risk (foreseeability) and accepting it, which in common law would be covered
by recklessness.
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Prior-Fault Blame in England and Wales, Germany and The Netherlands 61
instance, in a case where D had killed the victim by hitting him on the head with a
shovel, the Supreme Court upheld the mere conviction for negligent bodily harm
resulting in death, pointing out that the high level of alcohol might negate intent.37
(ii) A twofold mechanism
To prevent possible exculpatory eects, Germany has developed two mechanisms
to hold intoxicated oenders criminally liable. This way, German criminal law
wants to reconcile doctrinal consistency with policy demands to not leave intox-
icated crimes unpunished.38 On one hand, D can be held criminally liable for the
original oence under the rule of prior-fault called actio libera in causa (alic),
literally “an act free in its causes”, provided she intoxicated herself with the intent
to commit that oence or when she could have foreseen such an oence.39 On
the other hand, where there is no alic, the intoxication will be recognised as an
excuse, but D will alternatively be held liable for the separate oence of “danger-
ous intoxication”, which punishes oenders who get senselessly intoxicated and
while being in this state commit a wrongful act for which they lack the capacity of
guilt (§ 323a GCC).40 Thus, a clear normative distinction is made between D’s who
commit crimes that still have a culpable “instrumental” link with their prior intox-
ication and D’s who simply become mindlessly intoxicated and commit wrongful
acts for which they would otherwise be held liable.41 But as we will see below,
both the dogmatic grounding of alic and the separate criminalisation of dangerous
intoxication are not without critique.
How would Nadruku be decided in the German system? D’s serious intoxicated
state would probably lead to a successful incapacity defence as his intoxicated state
was neither “planned” nor (arguably) was there any foreseeability regarding the
crimes he committed. However, this would not lead to an acquittal as Nadruku
would still be convicted for the dangerous intoxication oence.
(iii) Prior-fault in blocking defences
Lastly, there is the problem of constructing one’s defences in contrived and/or
grand-schemer cases. In general, German criminal law either denies or limits a con-
trived defence depending on the nature of the prior-fault. Concerning self-defence
(§ 32 GCC), if D has provoked the attack purposefully to rely on the justication,
the defence will usually be rejected, as this could be considered an abuse of law.42
37 BGH, 15 April 1997, NstZ-RR 1997, 233; J Keiler and D Roef, Comparative Concepts (n.31), 247.
38 See MD Dubber and T Hörnle, Criminal Law (n.33), 285.
39 See III.B. Prior-fault intoxication in Germany.
40 See V.B. Bespoke prior-fault oences in Germany.
41 Benedikt Fischer and Jürgen Rehm, “Alcohol Consumption and the Liability of Oenders in the Ger-
man Criminal System” [1996] Contemporary Drug Problems 707, 713–714.
42 Claus Roxin and Luís Greco, Strafrecht. Allgemeiner Teil (“Criminal Law. General Part”) (Beck,
München, 2020) § 15, Mn. 65; J Blomsma, Mens Rea and Defences (n.35), 357; Joachim Herrmann,
21501-0012-003-r1.indd 61 6/11/2021 8:50:55 PM
62 Journal of International and Comparative Law
However, courts do not easily accept that it was D’s purpose to abuse the justica-
tion, and most commentators still acknowledge a right to self-defence as long as
the provocation is not unlawful.43 If D did not intend the attack but still foresaw the
risk that the aggressor would be provoked, this will not preclude the self-defence,
but its application will be limited.44
Because courts are quite reluctant in blocking self-defence, some scholars
defend that the justication should not be denied at all but that the so-called doc-
trine of actio illicita in causa (aiic, an act originating from an illegal cause) should
be applied. In this view, self-defence against a provoked attack remains justied,
but D is nonetheless criminally liable based on the earlier provocative conduct.45
Both courts and doctrine usually reject this unpopular approach, primarily because
it leads to the contradictory outcome that the same act would be lawful and unlaw-
ful at the same time.46
The Criminal Code distinguishes justifying necessity (§ 34 GCC) from excus-
ing necessity or duress (§ 35 GCC). Whereas justifying necessity constitutes the
objective right to choose a lesser evil when confronted with a conict of interests,
excusing necessity denies the blameworthiness of the actor when she was under
such a psychological pressure that she could not reasonably be expected to abide
by the law.47 This dierence also explains the dierent value given to prior-fault.
Regarding necessity, case law again makes a distinction between intentional ver-
sus negligently constructing the defence. If D created the emergency to abuse the
defence, he is not justied in protecting his interests by violating those of someone
else.48 However, if he simply foresaw that his actions would create a dangerous
situation, the justication will not be automatically denied, but the weight of his
interests can be minimalised in the balancing exercise.49 Just like in self-defence, a
minority view wants to solve contrived necessity via aiic, arguing that the conduct
constructing the necessity rather than the crime committed in necessity should be
the basis of criminal liability.50
To conclude with duress, this is the only defence where the legislator
explicitly addresses prior-fault as the Criminal Code denies the excuse when D
“Causing the Conditions of One’s Own Defense: The Multifaceted Approach of German Law” [1986]
BYU Law Rev 747, 749–750.
43 See C Roxin and L Greco, Strafrecht (n.42), § 15, Mn. 65–67; MD Dubber and T Hörnle, Criminal Law
(n.33), 451.
44 Ibid., § 15, Mn. 69–70; see J Blomsma, Mens Rea and Defences (n.35), 356.
45 See J Herrmann, “Causing the Conditions” (n.42), 750–750; Moritz Breuer, “Die Actio Illicita in Causa.
Darstellung und Meinungsstand” (“The Actio Illicita in Causa. Presentation and Opinion”) [2008] BRJ
5, 6–7. This aiic doctrine resembles the general prior-fault theory defended by Robinson in his classical
article “Causing the Conditions of One’s Own Defence: A Study in the Limits of Theory in Criminal
Doctrine” [1985] VaLR 1.
46 See C Roxin and L Greco, Strafrecht (n.42), § 15 Mn. 68.
47 See J Keiler and D Roef, Comparative Concepts (n.31), 226.
48 See C Roxin and L Greco, Strafrecht (n.42), § 16 Mn. 62; J Blomsma, Mens Rea and Defences (n.35),
387.
49 C Roxin and L Greco, Strafrecht (n.42), § 16 Mn. 60–61.
50 See J Blomsma, Mens Rea and Defences (n.35), 388.
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Prior-Fault Blame in England and Wales, Germany and The Netherlands 63
himself caused the danger and if he could be expected to cope with that danger.51
For instance, if D causes a trac accident while driving his injured partner to the
hospital, he will not be able to invoke duress if he has somehow caused this emer-
gency himself. However, § 35 GCC allows for considerable mitigation of pun-
ishment because D may still have been acting under extraordinary psychological
pressure.52
C. Prior-fault events in the Netherlands
The criminal law system of the Netherlands employs a tripartite structure similar
to that of Germany. To recapitulate, rst the statutory oence description needs to
be fullled, meaning that the objective elements of the crime (ie the behaviour that
the criminal code prohibits, such as assaulting another person or destructing prop-
erty) together with the subjective elements (ie the presence of negligence or intent)
need to be proven. When these objective and subjective elements, which together
constitute the oence, are fullled, the court assesses whether the act might be
lawful: in other words, whether there is an applicable justication. If not, the court
addresses the element of blameworthiness by discussing any potential excuses. If
an element of the tripartite structure cannot be fullled or is negated, D is not crim-
inally responsible.53
(i) Prior-fault: blocking defences or constructing oences?
The Netherlands primarily employs prior-fault (referred to as culpa in causa, lit-
erally meaning “fault in its cause”) to block justications or excuses.54 In other
words, contra English law, prior-fault does not play a role in constructing missing
elements in the oence denition requirements such as intent or negligence, and
thus nding equivalence with such elements is a non-issue. This is easily explain-
able, as the Dutch concept of intent is almost entirely normative—it is a legal con-
cept not a psychological one55—meaning that the potential negation of intent, based
on impaired mental capacity, is extremely small. A mental disorder or incapac-
ity can only negate intent when “the defendant has such a serious mental distur-
bance that we should assume that he had lost complete insight into the scope of his
51 See C Roxin and L Greco, Strafrecht (n.42), § 22 Mn. 44–50.
52 Ibid., § 22 Mn. 57.
53 More specically, if tier one cannot be fullled, D is acquitted. Yet, if the act is not unlawful or D is
not considered blameworthy (ie there is an applicable justication or excuse), D is rather “dismissed of
prosecution”. See Erik Koopmans, Het Beslissingsmodel van 348/350 Sv (“the Decision-Making Model
of Article 348/350 Code of Criminal Procedure”) (Deventer: Wolters Kluwer, 2017) pp 105–106.
54 As discussed more thoroughly later, the concept can be dened as nding culpability in creating the
conditions of a justicatory or excusatory defence. See Jaap De Hullu, Materieel Strafrecht: Over
Algemene Leerstukken van Strafrechtelijke Aansprakelijkheid naar Nederlands Recht (“Substantive
Criminal Law: About the General Principles of Criminal Liability in Dutch Law”) (Deventer: Wolters
Kluwer, 7th ed., 2018) p 385.
55 De Hullu, Materieel Strafrecht (n.54).
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64 Journal of International and Comparative Law
behaviour and its potential consequences”.56 As such, most individuals meet the
cognitive capacity requirement for intent. Aside from the objective intent threshold,
existing negligence-based oences also provide an alternative to liability for inten-
tional crimes, similar to the German system. By requiring that D could and should
have acted otherwise, the threshold is met simply by engaging in careless behav-
iour. Constructing negligent liability does not require prior-fault. With no need to
construct an oence, the English distinction between the two types of prior-fault
classications (constructing/blocking) is not commonly discussed in the Nether-
lands.57 As the focus lies on negating a defence, blocking rather than constructing
seems to be the most accurate classication of the doctrine.
To apply the above to Nadruku, in the Netherlands, liability would be found
straightforwardly. Intent can still be proven, as this is not something to be negated by
mental incapacity (unless the court considers the mental incapacity to be extremely
severe, which is something that cannot be achieved solely by intoxication). Thus,
an intentional assault oence would most likely be proven, without the need of pri-
or-fault rules. Prior-fault could play a role if Nadruku were to claim a defence, as
his voluntary intoxication could block an otherwise successful defence. Yet as we
discuss later, this means he would rst need to prove a successful defence, which
is not likely.
(ii) Prior-fault (culpa in causa) blocking defences
The concept of culpa in causa predominately blocks defences. By denition, it
refers to a type of fault (culpa) regarding an oender who committed an illegal act
under otherwise justicatory or excusatory conditions, having created those condi-
tions himself.58 The principle is not codied in the criminal code, and the general
meaning and application of the principle arise from case law and critical reection
of legal scholars.59 The concept can be considered a negative requirement for both
justicatory as well as excusatory defences.60 Grand schemer situations are, unlike
the English doctrine, generally not considered part of culpa in causa but rather
dolus in causa (ie intention as to arranging an exculpatory condition). Such situa-
tions are uncontroversially accepted reasons for denying a defence.
56 HR, 22 July 1963, ECLI:NL:HR:1963:AB5623, NJ 1968, 217 annot. Enschedé; HR, 9 June 1981,
ECLI:NL:HR:1981:AC0902, NJ 1983, 412 annot. Van Veen; HR, 14 December 2014, ECLI:N-
L:HR:2004:AR3226, NJ 2006, 448.
57 An exception is Jansen’s thorough discussion on prior fault. See Robert Jansen, “Drie Modellen voor
Eigen Schuld bij Strafuitsluitingsgronden” (“Three Models for Prior-Fault in Defences”) [2020] Boom
Strafblad 209.
58 Hans van Netburg, Eigen schuld!? “Culpa in Causa” bij Wettelijke Strafuitsluitingsgronden (“Own
Fault?! ‘Culpa in Causa’ in Legal Defences”) (WODC 1994).
59 Johannes Nijboer and Leo Wemes, Rechtspraak, Dogmatiek en Dogmatisme: de Analytische Waarde
van het Onderscheid tussen Materieel en Formeel Strafrecht (“Judiciary, Dogmatics and Dogmatism:
the Analytical Value of the Distinction between Substantive and Procedural Criminal Law”) (Arnhem:
Gouda Quint, 1990) p 38.
60 R Jansen, “Drie Modellen” (n.57), 210.
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Prior-Fault Blame in England and Wales, Germany and The Netherlands 65
The focus of culpa in causa mainly is on the non-accountability excuse (art.39
Dutch Criminal Code (DCC)), the Dutch insanity defence equivalent, predomi-
nantly for substance-induced psychoses. These circumstances and associated
controversies are discussed further in Section III.C. Less controversial is the appli-
cability of culpa in causa for defences such as necessity, duress and self-defence.
Necessity and duress may be negated when D consciously manoeuvres herself into
a dangerous situation, as the situation could have been avoided.61 This seems to
be alike the German situation in which foreseeability (conscious negligence) as to
the circumstances is required. However, “avoidability” of a situation is never the
sole criterion for a successful defence, and culpa in causa regarding the cause of
the situation does not immediately deny the defence altogether.62 Additionally, to
determine whether D culpably caused the exculpatory circumstances, the concept
of Garantenstellung plays a role.63
To negate self-defence, culpa in causa can be considered, although the courts
are hesitant to do so.64 The Supreme Court specied that in special circumstances
such as when D intentionally provoked an attack from the victim or intention-
ally sought confrontation with the victim leading to an attack, self-defence can be
denied.65 This requirement for prior-fault is not always separated from the general
assessment of the defence and is discussed as part of the withdrawal requirement.
Some argue that it is better suited to frame such arguments explicitly as culpa in
causa, meaning that rst all the requirements for self-defence ought to be fullled
and only then to be assessed in light of prior-fault.66 This would be comparable to
the German approach.
III. Intoxication and Prior-Fault
This section discusses the role played by “intoxication” in the denition of prior-fault
rules, as an example, a paradigm and even a proxy for prior-fault. Our aim here is
to identify exactly what T1 conduct D is being blamed for within each jurisdiction.
A. Prior-fault intoxication in England and Wales
For English legal academics and practitioners, doctrines of prior-fault are eec-
tively synonymous with intoxication rules. Where prior-fault is used to construct
61 Tarquinius Noyon, Gerard Langemeijer and Jan Remmelink, Het Wetboek van Strafrecht (“the Criminal
Code”) (1982) 259–260.
62 HR, 30 November 2004, ECLI:NL:HR:2004:AR2067, NJ 2005, 94 annot. Mevis.
63 By virtue of certain professions, occupation or special qualities, a higher standard of care may be
required of D.
64 See De Hullu, Materieel Strafrecht (n.54), 334–335
65 HR, 22 March 2016, ECLI:NL:HR:2016:456, NJ 2016, 316 annot. Rozemond (Overzichtsarrest); HR,
17 May 2016, ECLI:NL:HR:2016:864, NJ 2016, 461, annot. Rozemond.
66 See R Jansen, “De Beoordeling van Noodweer bij een Gezochte Confrontatie” (“The Judgment of
Self-defence in Cases of Sought Confrontation”) [2017] Delikt en Delinkwent 669.
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66 Journal of International and Comparative Law
the missing elements of an oence,67 there is a potential for prior-fault inculpation
outside of intoxication, but this is limited to a small subset of automatism cases
where D foresees at T1 the potential to lose control in dangerous circumstances
at T2.68 Despite some policy level interest,69 there is currently no mechanism for
prior-fault insanity: so mismanagement or failure to take medication at T1, for
example, leading to insane delusions and harms at T2 will still result in the special
verdict of “not guilty by reason of insanity” (as opposed to liability through pri-
or-fault).70 Where prior-fault operates to block a defence that would otherwise have
been available,71 again, outside of specic grand schemer or associative rules, the
main general capacity-based prior-fault rules are specic to cases of intoxication.
In this manner, beyond simple example or paradigm, the status of intoxication
has eectively become a proxy for ndings of prior-fault.72 There are advantages
to this in terms of both perceived simplicity and approximate accuracy. Intuitions
about prior-fault, as we have said, typically correlate with perceptions of voluntary
intoxication: D may not have intended to cause criminal harms at T2, but he knew
(or should have known) that taking dangerous drugs can lead to problem behav-
iour, and so his normative position is shifted by his choice to do so. But in focusing
on the status of intoxication rather than identifying the detail of the wrongs that
status is proxy for, various mismatch dangers arise. Indeed, where common law
theorists have looked to identify core markers of prior-fault blame, these include
D’s foresight of eventual incapacity at T1, D’s foresight at T1 of future harms at
T2, causal routes between T1 conduct and T2 incapacity and harms and so on.73
Such markers help us to explain criminal blame for T1 voluntary intoxication and
T2 harms, but they also highlight challenges to the proxy: they challenge ndings
of prior-fault within intoxication where foresight of future harm is missing at T1
and/or causal routes to T2 harms are uncertain. Moreover, they challenge the fail-
ure to account for markers of prior-fault outside intoxication where D is reckless
or negligent at T1 (eg voluntary sleep deprivation, negligent mismanagement of
medication).
Intoxication begins to look like a problematic proxy for prior-fault, which is
itself a awed proxy for absent subjective mens rea at T2 (discussed in Section II.A).
67 See II.A. Prior-fault events in England and Wales.
68 The classic example here is a diabetic person who fails to eat properly after an insulin injection, chooses
to drive (T1) and then causes an accident after becoming unconscious at the wheel (T2) having fallen
into a diabetic coma. John Rumbold and Martin Wasik, “Diabetic Drivers, Hypoglycaemic Unaware-
ness and Automatism” [2011] Crim LR 863.
69 See Law Commission, Insanity and Automatism (Discussion Paper, 2013) Ch 6.
70 We discuss this further in IV.A. Prior-fault and mental disorders in England and Wales.
71 See II.A. Prior-fault events in England and Wales.
72 See Hans Crombag, John Child and Rudi Fortson QC, “Understanding the ‘Fault’ in Prior-Fault Intox-
ication: Insights from Behavioural Neuroscience” in A Reed and M Bohlander (eds), Fault (Oxford:
Routledge, 2021).
73 See, eg, Susan Dimock, “Actio Libera in Causa” [2013] CrimL&P 549; Paul Robinson, “Causing the
Conditions of One’s own Defence” [1985] Vir L Rev 1; Douglas Husak, “Intoxication and Culpability”
[2012] CrimL&P 363.
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Prior-Fault Blame in England and Wales, Germany and The Netherlands 67
This manifests in potential over-criminalisation where the proxy of intoxication is
satised and in potential under-criminalisation where it is not. But beyond this,
as the common law has developed, we also perceive an unhelpful misdirection
of judicial focus, with courts looking to unpack complex (and scientically/clin-
ically uncertain) distinctions within the intoxication status rather than looking to
understand the underlying markers of prior-fault blame. We see this in R v Taj,74
for example, where D (a heavy and long-term drug user) experienced a psychotic
episode and violently attacked his victim in mistaken/delusional self-defence.
Whether Taj should be blamed for his psychotic episode is a dicult question to
answer, but it is surely the right one to ask. For the courts, however, constrained
within the current law, the question became whether psychosis potentially attrib-
utable to previous states of intoxication could be caught within that proxy. This is
also a dicult question, but, it is contended, the answer is far less valuable as a
normative basis for criminal blame.75
B. Prior-fault intoxication in Germany
We have seen that voluntary intoxication in Germany is not a separate defence but a
subcategory under the general incapacity excuse. To be more precise, according to
§§ 20–21 GCC, intoxication can be recognised as a temporary “pathological mental
disorder” or a “profound consciousness disorder”, covering both severe inebriation
cases and substance-induced psychosis.76 As mentioned, to prevent impunity in
case of a complete defence, D will be criminally liable for the intoxication oence
of § 323a GCC, but only if there is no alic in which event he is still punished for the
original crime. To compensate for a partial defence, prior-fault will have its eect
on the sentencing and prevent mitigation of punishment.
(i) When can intoxication lead to a full (or partial) defence?
Extreme intoxication will only lead to a full incapacity if D is no longer capable of
appreciating the wrongfulness of his conduct or of acting in accordance with this
appreciation (§ 20 GCC). In less serious cases, a diminished capacity is accepted if
the intoxication resulted in a limited but still substantial impairment of D’s capac-
ities (§ 21 GCC). The blood alcohol percentage (BAC) is the primary empirical
factor to determine the degree of intoxication and thus the distinction between full
incapacity and diminished capacity. As a general rule, courts will consider com-
plete incapacity if the BAC is above 0.3 per cent, while a diminished capacity will
be accepted if the BAC is above 0.2 per cent. However, these quantitative levels
are not evaluated in isolation but within an overall assessment, taking into account
74 [2019] QB 655 (CA).
75 See John Child, Hans Crombag and G.R. Sullivan, “Defending the Delusional, the Irrational, and the
Dangerous” [2020] Crim LR 306; “Drunk, Dangerous and Delusional: How Legal Concept Creep Risks
Overcriminalization” [2020] 115(12) Addiction 2200.
76 See C Roxin and L Greco, Strafrecht (n.42), § 20 Mn. 10–11.
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68 Journal of International and Comparative Law
D’s behaviour before, during and after the crime and taking into other factors such
as physical condition, alcohol tolerance and the type of oence.77 Therefore, it is
possible, in spite of substantial inebriation, to conclude from D’s conduct that he
has retained sucient ability for control.78 Arguably, for drugs and medication, no
simple empirical measurement may exist, and courts will use all available psy-
chodiagnostic and behavioural evidence to make decisions about D’s incapacity.79
For instance, it will be considered whether D committed the oence while he was
on overdose or suered from withdrawal symptoms.80
(ii) Basic rules of alic
The classical textbook alic is the “Dutch courage” case where D intentionally
intoxicates himself to facilitate the planned oence and then commits it in such
a state that he falls under § 20 GCC. The essential requirement is double intent,
both for the intoxication and the subsequent oence.81 However, conditional intent
(resembling English recklessness) may be sucient in some (more common) sce-
narios, which holds D also criminally liable when he has foreseen and accepted
the risk of committing the oence while becoming intoxicated.82 For instance if an
adult deliberately intoxicates himself to have sex with another person but ends up
having sexual intercourse with a minor, alic is accepted although this oence was
not planned.83
Next to its intentional form, German law also accepts negligent alic, provided
D becomes intoxicated and should have foreseen that this would lead to the (inten-
tional or negligent) commission of the oence. However, it is doubtful whether an
alic construct is really necessary for negligent oences because the “prior-fault” at
hand will already constitute a violation of a duty of care (preceding the result).84
Obviously, alic is mostly used in the more common cases of § 21 GCC, where
prior-fault will become part, at the sentencing stage, of an overall consideration of
all relevant mitigating and aggravating circumstances. According to the Supreme
Court, mitigation of punishment would be denied if D knew that the consumption
of intoxicating substances would have an especially unfavourable eect on him
and knew or should have known that he tended to commit acts of violence or other
77 Ibid., § 20 Mn. 10.
78 BGH, 10 October 2020, NStZ-RR 2021, 40; MD Dubber and T Hörnle, Criminal Law (n.33), 280–281.
79 See W Perron and B Weisser, Strafgezetsbuch (n.32), § 20 Mn. 16; Regarding the problem of evaluating
the eect of medication, see F Pluisch, “Neuere Tendenzen der BGH-Rechtsprechung bei der Beurtei-
lung der Erheblich Verminderten Schuldfähigkeit Gemäss § 21 StGB nach Medikamenteneinnahme”
(“New Tendencies in the BGH-jurisprudence in the Assessment of the Strongly Diminished Capacity
Defence in Cases of Medication Intake, as per Provision 21 Criminal Code”) [1996] NZV 98.
80 Michael Bohlander, Principles of German Criminal Law (Oxford: Hart, 2009) p 134.
81 See C Roxin and L Greco, Strafrecht (n.42), § 20 Mn. 67; I Stassen-Rapp, Die Behandlung (n.34), 285.
82 C Roxin and L Greco, ibid., § 20 Mn. 60; BGH, 13 September 2001, 3 StR 331/01.
83 Benedikt Fischer and Jürgen Rehm, “Intoxication, the Law and Criminal Responsibility—A Sparkling
Cocktail at Times: The Case Studies of Canada and Germany” [1998] European Addiction Research 97.
84 See C Roxin and L Greco, Strafrecht (n.42), § 20 Mn. 59; I Stassen-Rapp, Die Behandlung (n.34), 287.
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Prior-Fault Blame in England and Wales, Germany and The Netherlands 69
crimes (based on prior experience with similar oences).85 It is interesting to note
that according to the Supreme Court, a higher threshold should be used for illegal
drugs than for alcohol, as in the opinion of the Court the possible harmful eects of
the latter are usually more foreseeable.86
(iii) Theoretical foundations for alic: Critiques
Although the Supreme Court accepts alic, German legal doctrine is divided on both
its justication and theoretical grounding. Some scholars simply reject alic because
it clashes with fundamental principles of criminal law, in particular the concurrence
requirement and legality. The primary problem is that alic is an uncodied doc-
trine that creates conict with § 20 GCC in light of the constitutionally guaranteed
principle of legality (Basic Law art.103). As the wording of § 20 GCC stipulates
that D ought to be excused when at “the time of the commission of the oence” he
lacks the required mental capacities, an unwritten exception to this defence is to the
oender’s disadvantage, which is a violation of the legality principle. This is even
more so when there is already a codied alternative for extreme intoxication in §
323a GCC.87
Other scholars try to ground criminal liability via alic by allowing an exception
to the concurrence principle.88 The oender should not have the advantage of suc-
cessfully invoking an excuse by abusing the law, an argument that is also used, as
we have seen, to deny contrived self-defence and necessity. Following the example
of Switzerland, it is argued that the legislator should create a separate clause in
§ 20 GCC stipulating that the defence is denied “if the person could have avoided
the state of mental incapacity or diminished incapacity and was, at that time, able
to foresee the act he committed in that state” (§ 19 SCC).89
However, according to the majority view, a legislative change is not necessary
as the alic doctrine is compatible with § 20 GCC and the principles of criminal
law. The idea is that the words “at the time of the commission of the oence” in
§ 20 GCC have to be interpreted in such a way that D already started to commit
the oence before he became intoxicated. This so-called “elements of the oence
theory” assumes that the causing of the defence can be seen as the beginning of the
85 Franz Streng, “Actio Libera in Causa und Verminderte Schuldfähigkeit—BHG, NStZ 2000, 584”
(“Actio Libera in Causa and Diminished Responsibility”) [2001] JuS, 540; MD Dubber and T Hörnle,
Criminal Law (n.33), 283.
86 BGH, 17 August 2004, 5 StR 591/03; W Perron and B Weisser, Strafgezetsbuch (n.32), § 21 Mn 20.
87 Hans-Ulrich Paegen, “Actio Libera in Causa und 323a StGB” (“Actio Libera in Causa and provision
323a GCC”) [1985] ZStW 513.
88 Joachim Hruschka, “Die Actio Libera in Causa bei Vorsatztaten und bei Fahrlässigkeittäten” (“The
Actio Libera in Causa Doctrine in Intentional and Negligent Oences”) [1996] JZ 64; I Stassen-Rapp,
Die Behandlung (n.34), 308.
89 Wolfgang Wohlers, Schweizerisches Strafgesetzbuch Handkommentar (“Commentary of the Swiss
Criminal Code”) (Bern: Stämpi, 2020) pp 73–74; Arlie Loughnan and Sabine Gless, “Understanding
the Law on Intoxicated Oending: Principle, Pragmatism and Legal Culture” [2016] Journal of Inter-
national and Comparative Law 345, 356–357.
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70 Journal of International and Comparative Law
commission of the oence. As D is still sober at that moment and therefore acting
in a blameworthy way, § 20 GCC is not available to him.90
Although the Supreme Court adopts this highly contested theory, it has also
stipulated that alic is excluded for some conduct oences such as drunk driving
and dangerous driving; becoming (intentionally) intoxicated can hardly be seen as
the beginning of driving a vehicle.91 Although this decision is restricted to trac
oences, it clearly illustrates a more general critique, that is the intoxicating act
constitutes merely a preparatory act and not the beginning of the commission of
the oence.92 Importantly, this debate is not that relevant for the more widely used
diminished capacity defence. As § 21 GCC is not an obligatory ground of excul-
pation but opens only the possibility of mitigated sentencing, there is less conict
with the principles of concurrence and legality.93
C. Prior-fault intoxication in the Netherlands
Intoxication-related crimes in the Netherlands (as in Germany) focus on the ele-
ment of blameworthiness. Severe intoxication engages the excuse of non-account-
ability, the Dutch insanity equivalent, as this defence deals with a wide range of
mental incapacities and disorders.94 The Dutch culpa in causa doctrine eectively
blocks the intoxication-induced non-accountability defence by emphasising ante-
rior culpability for creating these conditions.95 In practice, this means that when
the intoxication (be it alcohol or illicit substances) is voluntary, culpa in causa is
almost always considered present and the defence is denied.
Despite their broad inculpatory eects, it is notable that these rules have not
provoked the signicant debate and criticism of equivalent rules in England and
Germany, often presented in terms of necessary pragmatism. The Dutch, like the
English, seem to be satised enough with using intoxication as a proxy for pri-
or-fault and seem mostly concerned (if at all) with identifying concrete requirements
to dierentiate between types of intoxication. However, as we discuss here, similar
concerns and criticisms should be highlighted as to the Dutch system.
90 I Stassen-Rapp, Die Behandlung (n.34), 304–307.
91 BGH, 22 August 1996, 4 StR 217/96, BGHSt 42, 235; Kai Ambos, “Der Anfang vom Ende der Actio
Libera in Causa?” (“The Beginning of the End of the Actio Libera in Causa Doctrine?”) [1997] NJW 2296.
92 See C Roxin and L Greco, Strafrecht (n.42), § 20 Mn. 57–66.
93 See MD Dubber and T Hörnle, Criminal Law (n.33), 290.
94 Which does not only require a mental disorder but also a causal connection between the disorder and
the oence, as well as a lack of cognitive or volitional capacity: a diagnosis alone is not sucient. See
Johannes Bijlsma, Stoornis en Strafuitsluiting: Op Zoek naar een Toetsingskader voor Ontoerekenbaar-
heid (“Disorder and Defences: Finding an Assessment Framework for Non-accountability”) (Nijmegen:
Wolf Legal Publishers, 2016) pp 244–249. In addition to the excuse of non-accountability, the concept
of diminished accountability provides a possibility for cases in which mental disorders played a role
during the oence, but which do not full these strict requirements for the non-accountability excuse.
Diminished accountability is not codied (as opposed to §21 GCC) applicable for all oences (as
opposed to the limited application of diminished responsibility in England) and generally leads to a
mitigated sentence.
95 Gerardus Strijards, Hoofdstukken van Materieel Strafrecht (“Chapters of Substantive Criminal Law”)
(Utrecht: Lemma, 1992) pp 272–276.
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Prior-Fault Blame in England and Wales, Germany and The Netherlands 71
(i) Intoxication and psychoses
Importantly, intoxication does not automatically lead to a defence. Due to the high
threshold of the non-accountability defence,96 it is exceptional that intoxication
leads to such a mental incapacity that this defence is considered, let alone allowed.
Intoxication without any further comorbidities or substance-induced disorders
would likely not be considered a valid basis for non-accountability but would
only be discussed when determining the most appropriate sentence or measure.97
Practically, this means that most instances of intoxication and culpa in causa are
substance-induced psychoses, as psychosis is generally a valid basis for the non-ac-
countability excuse. As such, the discussion on culpa in causa for intoxication and
culpa in causa for intoxication-induced disorders is, largely, one and the same. This
means that Taj (discussed in Section III.A) would likely be judged as intentional
assault in the Netherlands. His psychosis would prima facie be a valid reason for a
non-accountability defence, only to be negated by culpa in causa, simply because
the psychosis was substance-induced. What is left for D is to request a mitigated
sentence due to reduced accountability.
As this example shows, the underlying premise of the doctrine is that D has
consumed the substance voluntarily and thus accepted the consequences thereof.
This results in a wide scope in which any consequences of intoxication—also
unforeseen ones—can be blamed on D by virtue of taking the substance.98 Not
unlike the English law, intoxication becomes a proxy for prior-fault, with similar
associated problems. These are illustrated in two landmark cases.
(ii) Problems associated with culpa in causa
The rst landmark case that outlines the requirements for culpa in causa is the
so-called “culpa in causa case” in which the psychotic defendant caused his grand-
mother’s death after using cocaine and heroin simultaneously. He was found
responsible for the psychosis by voluntarily taking drugs, and consequently the
non-accountability excuse was denied.99 The reason for this was the illegality of
the substances, implying a generally excepted awareness that drugs are danger-
ous and harmful. Moreover, D had experienced these negative eects before, was
96 There needs to be an almost mono-causal connection between the disorder and the defence, as well
as a very severe cognitive or volitional incapacity. See for instance the analysis of a recent case: Sjors
Ligthart, Tijs Kooijmans and Gerben Meynen, “Een Juridisch Criterium voor de Ontoerekeningsvat-
baarheid: Een Uitspraak van het Gerechtshof Den Haag Geanalyseerd” (“A Legal Criterion for the
Non-accountability Defence: An Analysis of a Judgment of the Court of Appeal in the Hague”) [2018]
1 Delikt en Delinkwent 101. See also J Bijlsma, Stoornis en Strafuitsluiting (n.94).
97 And is sometimes an aggravating rather than mitigating circumstance.
98 Johannes Bijlsma, “Drank, Drugs en Culpa. Zelntoxicatie en Culpa in Causa: Pleidooi voor een Voor-
zienbaarheidseis” (“Alcohol, Drugs and Culpa. Self-intoxication and Culpa in Causa: a Plei for a Fore-
seeability Requirement”) [2011] 6 Delikt en Delinkwent 654.
99 HR, 9 June 1981, ECLI:NL:HR:1981:AC0902, NJ 1983, 412.
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72 Journal of International and Comparative Law
already agitated, yet continued to inject a higher dose. The court emphasised these
aspects, which were followed in later judgments as well.100
In a second landmark case, the “cannabis psychosis case”,101 D experienced a
cannabis-induced psychosis and committed an attempted theft, destruction of prop-
erty and assault. The court rejected a non-accountability plea. According to the
defence, a psychosis stemming from cannabis is unlikely, and D had never experi-
enced similar symptoms before, unlike the aforementioned case. Nonetheless, the
court held that the specic awareness of the detrimental consequences of drugs is
not necessary for culpa in causa to apply. A general danger to using drugs can be
assumed.102 This is a stretch from the previous case in which more concrete foresee-
ability of the negative eects was deemed key. The current judgment, on the other
hand, seems to emphasise a more general endangerment in the use of substances.
These two cases illustrate that currently, as with English law, concrete fore-
seeability is no requirement for culpa in causa, although some have argued that
it should be.103 The law expects individuals to foresee unwanted consequences if
a substance is unambiguously prohibited. Yet, other substances such as alcohol
or marijuana can result in a culpa in causa application as well, begging the ques-
tion whether dierentiation between the type of substance is appropriate. What the
cases also demonstrate is the shift from assessing responsibility at T1 versus T2.
In the rst case, these two points are normatively connected (to some extent) by
D’s foresight of future incapacity and harms at T1. In the more recent case, no such
connection exists. The use of culpa in causa within the second case is, therefore,
more problematic: focusing on T1 choices that were not straightforwardly culpable
in the circumstances and allowing a tenuous T1–T2 link to establish blame at T2.
IV. Prior-Fault and Mental Disorder
This section explores the relationship between prior-fault and mental health disor-
ders, both as a co-morbid factor (ie with a state of intoxication) and/or singularly. In
doing so, some quite fundamental dierences become apparent between the three
jurisdictions.
A. Prior-fault and mental disorders in England and Wales
Mentally disordered defendants will always pose dicult questions for the criminal
law. Where D causes harms in a delusional or otherwise disordered mental state, it
will not always be clear to what extent he was responsible and/or culpable for that
event (clinical and legal uncertainties), and ndings that would usually indicate
100 For example HR, 14 December 2004, ECLI:NL:HR:2004:AR3226.
101 HR, 12 February 2008, ECLI:NL:HR:2008:BC3797, NJ 2009, 157.
102 “The defendant could have known that using cannabis is not entirely without risks”. HR, 12 Febru-
ary 2008, ECLI:NL:HR:2008:BC3797, NJ 2009, 157.
103 J Bijlsma, “Drank, Drugs en Culpa” (n.98).
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Prior-Fault Blame in England and Wales, Germany and The Netherlands 73
an unqualied acquittal must be cautioned by the prospect of future dangerous-
ness. It is in this context that, although the legal headline position (as discussed
later) regarding prior-fault appears relatively clear, several qualications require
unpacking.
(i) Mental disorders and prior-fault: Headline
The headline position regarding prior-fault in English law is easy to state: there are
no prior-fault rules attached to conditions of mental disorder or legal insanity. Thus,
even where D is reckless or negligent in his use of medication (eg a failure to take
anti-psychotics) or precipitates a mental disorder (eg through the recreational use
of psychoactive drugs), such failures at T1 will not be operative at T2 in replacing
missing mens rea or blocking an otherwise available defence. As was made clear
in Beard a century ago:
The law takes no note of the cause of the insanity . . . drunkenness is one
thing and the diseases to which drunkenness leads are dierent things; and
if a man by drunkenness brings on a state of disease which causes such a
degree of madness, [. . .] then he would not be criminally responsible.104
This position has been questioned academically and in terms of potential reform105
but remains a strong precedent at common law.106 There are clear advantages to
maintaining it. Most importantly, excluding considerations of prior-fault allows
courts to focus on D’s responsibility at T2 (which is already hard enough) without
being dragged into a potential complex search for the causal origins of a mental
health disorder. Further, because of the qualied nature of the special insanity ver-
dict, allowing for compulsory hospitalisation and/or supervision,107 setting aside
potential issues of prior-fault does not necessarily put D outside the continued con-
trol and supervision of the state.
(ii) Mental disorder and prior-fault: Behind the headline
Despite the explicit exclusion of prior-fault rules in this area, it is possible to iden-
tify implicit prior-fault logic applying both in the construction and the interpreta-
tion of relevant legal provisions. Three examples will suce for present purposes,
the rst two of which we have touched upon in previous sections.
The rst example relates to uncertain boundaries between intoxication on one
hand (prior-fault rules apply) and mental disorder on the other (prior-fault rules do
104 [1920] AC 479, 500–501 (HL).
105 See, eg, Law Commission, Insanity and Automatism (n.68), Ch 6; Meron Wondemaghen, “Evaluating
Predominant Causes of Insanity in Cases of Drug-induced Psychoses” [2015] Int J Forensic Ment
Health 76.
106 See, eg, R v Taj [2019] QB 655; R v Harris [2013] EWCA Crim 223 (CA).
107 Criminal Procedure (Insanity and Untness to Plead) Act 1991 s.5.
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74 Journal of International and Comparative Law
not apply). Typically, the boundary of intoxication has been marked by D’s clinical
“drug-on-board” state at the time of oending, with questions then arising (within
this boundary) whether a co-morbid state of insanity or disorder was the dominant
cause of D’s conduct.108 This position has most recently been questioned in Taj
however, where psychosis, arising after drugs were no longer proven to be in D’s
system, was caught within the intoxication rules. Blurring the boundary between
intoxication and mental disorder in this way risks signicant expansion of pri-
or-fault inculpation to conditions attributable to historical intoxication.109
The second example is more general and longstanding but often neglected in
debate. This is the potential for the special verdict of “not guilty by reason of insan-
ity” to be understood in inculpatory terms. The special verdict provides for a tech-
nical acquittal, and so where D has committed an oence it is clear that (despite the
potential for compulsory treatment orders) the eect of the verdict is exculpatory.
But this is less clear in cases where D has not completed an oence or satises
the elements of an alternative defence. In such cases, D would normally expect an
unqualied acquittal, and so the imposition of treatment or supervision at disposal
creates new restrictions on D’s freedom. And these are not civil measures; D need
not meet the independent criteria for civil detention. Rather, D is eectively incul-
pated by his harmful (though not criminally blameworthy) conduct, with a view
towards his potential future dangerousness.110
The nal example relates to the exclusionary legal status of delusional or dis-
ordered beliefs. This entails the common law rule that D cannot rely on a delu-
sional or disordered mistaken belief to deny mens rea or to establish a belief-based
defence (eg mistaken self-defence) and that he must instead appeal to the insanity
rules. Where insanity rules apply, the special verdict discussed above becomes the
focus. But, crucially, even where the insanity rules are found not to apply (which
is quite often with such a narrow set of rules, as in Taj discussed earlier), D’s delu-
sional or disordered beliefs may still prevent his access to other routes to acquittal.
The position is less certain where D is denying mens rea, but may still be challeng-
ing for D.111 Nonetheless, the exclusion is quite clear concerning the alternative
defences such as self-defence: akin to intoxication, D will not be able to rely on
a delusional mistaken belief to establish self-defence and, without an alternative
insanity verdict, will default to liability for the oence committed.112
These exceptions or qualications to the headline position in English law
require more scrutiny. Yet their cumulative eects call into question the accuracy
of the headline position, and perhaps an explicit embracing of prior-fault logic in
108 On the latter, see R v Dietschmann [2003] 1 AC 1209 (HL) on diminished responsibility and R v Oye
[2014] 1 WLR 3354 (CA) on insanity.
109 Discussed in J Child, H Crombag and JR Sullivan, “Defending the Delusional” (n.75).
110 Discussed in John Child and GR Sullivan, “When Does the Insanity Defence Apply? Some Recent
Cases” [2014] Crim LR 787.
111 Timothy Jones, “Insanity, Automatism, and the Burden of Proof on the Accused” [1995] LQR 475.
112 See R v Martin [2003] QB 1 (CA) and R v Canns [2005] EWCA Crim 2264 resulting in a partial defence
of diminished responsibility; and R v Taj [2019] QB 655 resulting in conviction and a 19-year term.
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Prior-Fault Blame in England and Wales, Germany and The Netherlands 75
this area might better clarify the law and allow for more open debate on what we
want the criminal law to do in this area.
B. Prior-fault and mental disorders in Germany
In England, prior-fault rules do not apply to legal insanity, even when this is caused
by voluntary intoxication. This is dierent in Germany where severe intoxication
is in itself already a temporary form of “insanity” and where alic is applicable
on all culpable intoxications and also when these result in mental disorders such
as drug-induced psychosis. Yet what about culpable causation of mental disorders
outside of intoxication, or if the intoxication is (largely) caused by a mental disease,
as in the case of addiction? And how do courts address cases where multiple (non)
pathological factors have contributed to D’s incapacity?
(i) Alic beyond intoxication
Although alic is often presented as a general prior-fault doctrine, it is largely
restricted to voluntary intoxication.113 Given the historical development of alic,
inextricably connected with § 323a GCC, this is understandable. The only other pro-
found consciousness disorder where alic is rather hesitantly applied is the so-called
“aect”.114 An aect is “an explosive reaction based on an extreme emotional state
where no deliberate decision-making occurs anymore, for example, extreme rage,
hate, shock, panic or fear”.115 Courts accept alic if there is a culpable link between
D’s prior conduct and the build-up of his emotional state resulting in the explosive
reaction: that is he must have been capable to foresee and prevent the beginning of
the aect.11 6 The application of alic remains, however, controversial, as there is a
risk that D is not blamed for a concrete prior-fault, but is blamed for some vague
violation of an abstract duty of self-restraint, which may be more related to D’s
character or lifestyle than with culpable conduct.117 It is a fundamental principle
of German law that criminal liability cannot be based on the oender’s character
or way of life (the infamous Lebensführungsschuld). Hence, a correct use of alic
implies that D’s lack of blameworthiness at T2 should only be replaced by culpable
conduct at T1 and not by general blameworthiness based on his lifestyle.118
113 But see Susanne Beck, “Neue Konstruktionsmöglichkeiten der Actio Libera in Causa” (“New Con-
struction Possibilities of the Actio Libera in Causa Doctrine”) [2018] ZIS 204.
114 Both English and Dutch law exclude aects from their insanity defence. The impossibility of taking
these into account under self-defence excess in German law in part explains why these may be recog-
nised as an incapacity defence. In practice, profound aects are usually only mitigated under § 21 GCC.
See J Keiler and D Roef, Comparative Concepts (n.31), 242.
115 M Bohlander, Principles of German Criminal Law (n.80), 133.
116 BGH 15 December 1987–1 StR 498/87; See C Roxin and L Greco, Strafrecht (n.36), § 20 Mn. 15–18.
117 See W Perron and B Weisser, Strafgezetsbuch (n.32), § 20 Mn. 15.
118 On the rejection of blameworthiness based upon a person’s way of living, see C Roxin and L Greco,
Strafrecht (n.42), § 19 Mn. 62.
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76 Journal of International and Comparative Law
Although there is hardly any debate on this matter, similar concerns may
explain why prior-fault is not easily accepted when a mentally ill D contributes to
his disorder through therapy resistance or medication non-compliance. In addition
to complicating factors that make it hard to establish a mono-causal link, especially
when there is substance abuse involved, German law may want to avoid the situ-
ation when the so-called prior-fault amounts to culpability based on D’s character
or lifestyle. In this regard, it is not surprising that the Supreme Court has stipu-
lated that D’s therapy resistance may not be used as an argument against mitigating
punishment, without rst carefully examining whether he can be blamed for it.119
Courts must avoid the situation when D’s conduct is not just ascribed to a Lebens-
führungsschuld. If the refusal to follow therapy is symptomatic of the underlying
disease, then this can never be accepted as an aggravating circumstance.120
To be complete, some disease-related prior-faults can also be solved through the
ordinary rules of negligence liability, but these instances seem largely unconnected
with mental disorders and rather challenge the capacity to act than the capacity of
guilt. For instance, an epileptic driver, who caused a lethal accident during one of
his ts, was convicted for negligent killing, without reference to alic rules com-
pensating for the absence of voluntary conduct, as the participation in trac with
this disease was considered a violation of a duty of care. Interestingly, however, the
Supreme Court quashed his conviction because they had not suciently considered
the subjective part of the foreseeability. They reasoned that this might be dicult to
establish, as D possessed only a very limited degree of insight into his disease and
its consequences. Moreover, his doctor had never warned him, and he had driven
for many years without problems.121
(ii) Prior-fault and multiple contributing factors
In the complicated but not uncommon cases where (partial) incapacity is not caused
by intoxication alone, the Supreme Court demands an overall assessment of the cir-
cumstances relevant to D’s blameworthiness.122 If a diminished capacity is also the
result of a pathological disorder, this circumstance must be taken into account by
reducing the sentence.123 The decisive factor is the actual inuence of the disorder,
including the extent to which the intoxicated state may be traced back to it, but this
will always be considered alongside other factors such as D’s prior experiences
and the nature of the crime. Illustrative is a case where D, who was suering from
119 BGH, 15 June 1998, 3 StR 288. For instance, a possible cause of non-compliance could be the lack of
insight that is often inherent in some mental illnesses: Zachary Torry and Kenneth Weiss, “Medication
Noncompliance and Criminal Responsibility: Is the Insanity Defence Legitimate?” [2012] J Psychiatry
Law 231.
120 BGH, 22 July 2020, NStZ-RR 2020, 303.
121 BGH, 17 November 1994, BGHSt 40, 341; J Blomsma, Mens Rea and Defences (n.35), 193.
122 BGH, 8 October 2020, NStZ-RR 2021, 40.
123 Gerhard Altvater, “Rechtsprechung des BGH zu den Tötungsdelikten” (“Jurisprudence of the BGH
Regarding Homicide Oences”) [1999] NStZ 22.
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Prior-Fault Blame in England and Wales, Germany and The Netherlands 77
dysthymia (persistent depressive disorder), attempted to kill a person after a heated
argument while being intoxicated. Although the court found that D habitually seeks
refuge in alcohol when he has a depressive breakdown, especially in conict situ-
ations, they considered these circumstances absent. But even if this were the case,
the Court concluded that a disorder-associated impairment of the resistance to use
alcohol is in itself not sucient as a mitigating factor, especially not in case of fore-
seeable violent crimes.124 This raises the more general question on how an addic-
tion-motivated oence is addressed in German criminal law.
(iii) The role of addiction
Addiction is usually considered a “pathological mental disorder” falling under
§§ 20–21 GCC. In most cases, the addiction by itself will merely result in a dimin-
ished capacity defence. According to the Supreme Court, this will be the case if
the long-term substance abuse has led to serious personality changes or when the
oender was suering from serious withdrawal symptoms that drove him to pro-
cure drugs through a criminal oence or when he commits the oence in a state of
acute intoxication.125 In exceptional circumstances, even the mere “fear” of serious
withdrawal symptoms may diminish D’s capacity.126
In what way can alic still play a role in cases of addicted oending? The
Supreme Court clearly stipulates that when crimes are committed while being
addicted, the addiction in itself is not considered prior-fault. Arguably, this would
not only contradict the possible exculpatory and mitigating eect of the addiction,
but it would also lead to the acceptance of the aforementioned Lebensführungss-
chuld.127 However, this does not mean that when an addicted oender commits a
crime in a substantially intoxicated state, this will necessarily have a mitigating
eect. The role of the addiction and thus the risk of unjustiably grounding D’s
blameworthiness upon his way of life are assessed in light of his personality and
all the other circumstances of the situation. For instance, it is still possible to blame
an alcohol-dependent oender, not for being intoxicated as such, but for engaging
with a potentially violent situation, even though he knew or ought to have known
that he would lose control as a result of his intoxication.128
C. Prior-fault and mental disorders in the Netherlands
In the Netherlands, when potentially criminal harms are caused because of a mental
disorder, non-accountability can be argued, but courts may block this defence if the
124 BGH, 16 June 1998, 1 StR 162–98; BGH, 24 September 1991, 1 StR 480–91.
125 BHG, 28 October 1976, 2 StR 242/76; Anna Goldberg and David Roef, “Addiction, Capacities and
Criminal Responsibility: A Comparative Approach” in J Hage, D Roef, A Waltermann and M Jelicic
(eds), Law, Science and Rationality (Utrecht, Netherlands: Eleven International Publishing, 2020) 223.
126 BGH, 2 November 2005, 2 StR 389/05; BGH, 17 April 2012, 1 StR 15/12.
127 BGH, 23 June 2006, 2 StR 135/06; BGH, 12 June 2008, 3 StR 84/08; A Goldberg and D Roef, “Addic-
tion, Capacities and Criminal Responsibility” (n.125), 225.
128 BGH, 17 August 2004, 5 StR 93/04; see also MD Dubber and T Hörnle, Criminal Law (n.33), 283.
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78 Journal of International and Comparative Law
mental disorder was culpably caused. This is essentially the same mechanism as
with intoxication and intoxication-induced disorders.
The fundamental critique arising here is that of coincidence: by establishing
that there is no blameworthiness at the time of the oence (T2) and fullling all
requirements for an excuse, D should be acquitted. After all, the mens rea and actus
reus need to coexist for D to be held liable, rendering it dogmatically convoluted or
even unjust to circumvent this issue by using circumstances prior (and potentially
even unrelated) to the oence. This is a similar sentiment as the English hold by
not allowing prior-fault to inuence the insanity defence. However, this critique
of coincidence is rarely addressed in Dutch literature.129 Rather, the Dutch system
reverts to “pragmatism” when it comes to evaluating defences, which may be the
reason that it is generally accepted to use prior-fault to block the non-accountability
excuse.130 This perspective of the Dutch, however, seems to run into problems with
fair labelling.131
The criticism should, however, be set in perspective. Apart from substance-
induced disorders, such as drug-induced psychoses discussed in Section III.C,
cases of culpably caused mental disorders are rare. Even more uncommon are
cases of medicine non-compliance. To address whether D acted culpably in her
non-compliance, the criterion is foreseeability, as in Germany: was D aware of the
negative side eects or should she have been aware? Importantly, disorders that are
potentially induced by prescribed medication are not considered induced by vol-
untary intoxication and do not automatically warrant a culpa in causa reasoning.132
This is not the case when D has knowingly consumed an incorrect dosage or has
combined the medicine with alcohol: then, culpa in causa likely applies.133 The
problem of comorbidity134 complicates the cases of medicine-induced oences, as
does the lack of a mono-causal connection between the medicine and delinquent
behaviour.135 Judges often do not consider the use (or non-compliance) of medicine
to be the only explanation for the oence, even though such a mono-causal connec-
tion is required for the non-accountability excuse. Invariably there are additional
factors at play, and experts cannot possibly determine the exact causal impact of the
medicine on the behaviour.136
129 Except for R Jansen, “Drie Modellen” (n.57), 215–217.
130 See J Blomsma, Mens Rea and Defences (n.35), 262–264.
131 Although Jansen argues that fair labelling remains an issue in other jurisdictions as well. See R Jansen,
“Drie Modellen” (n.57), 217.
132 David Roef and Robert-Jan Verkes, “Medicijngebruik, Agressie en Strafrechtelijke Verantwoordelijk-
heid” (“Medication Use, Aggression and Criminal Responsibility”) [2013] 88(45) NJ 3143.
133 See for instance, HR, 14 December 2004, ECLI:NL:HR:2004:AR3226. D had consumed alcohol in
combination with his medicine, which he knew should not have been used simultaneously.
134 Other comorbid disorders may play an important role in the noncompliance with medication use (or this
may even be a symptom of the disorder itself).
135 D Roef and RJ Verkes, “Medicijngebruik” (n.132).
136 See for instance, GH, 3 March 2011, ECLI:NL:GHAMS:2011:BP6664 or GH, 11 December 2012,
ECLI:NL:GHSGR:2012:CA2291.
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Prior-Fault Blame in England and Wales, Germany and The Netherlands 79
Rare as they are, the discussion surrounding mental disorders and prior-fault
is—again—dominated by intoxication. There are two distinct situations. The
rst are cases in which the mental disorder is culpably caused, for example, sub-
stance-induced psychoses as described in Section III.C. The second relates to men-
tal disorders as a cause of intoxication, suggesting that the intoxication (and the
consequent mental impairments) may not be culpably caused.
(i) Causal paths between disorders and intoxication
The issue of sequential causal ordering has arisen in a recent case involving D with
psychoses as well as cocaine dependency.137 Despite the aggravating cocaine usage,
the psychosis was considered crucial in negating D’s responsibility because he had
been psychotic in the past, and the court found him non-accountable on this basis.
Culpa in causa did not apply. This case demonstrates an interesting point as courts
seem to nd it relevant to know what came rst: the psychosis or the intoxication.
Supposedly, this would demonstrate whether D was culpable in acquiring his men-
tal incapacity.
However, it is usually not possible to identify the causal chain of a psychotic
episode. Oftentimes, the individual has an underlying vulnerability, and the sub-
stance itself did not singularly produce a psychosis. Moreover, individuals with
a predisposition for psychoses are four times more likely to abuse substances,138
and before becoming psychotic, individuals experience preceding symptoms. For
instance, the individual may have diculty in sleeping, be irritable or feeling over-
loaded. Thus, it is understandable that there is a higher percentage of substance
abuse among these groups.
Exactly this struggle and the diculty (if not impossibility) of identifying the
causal paths seem to be the reason that English law remains reluctant to apply pri-
or-fault in such cases. It seems that the Dutch judges rather opt for the opposite and
seem to apply culpa in causa rather indiscriminately. Interestingly, however, there
is little academic discussion on the matter.
(ii) The problem of addiction
A distinct but related issue is that of addiction. Although it is unlikely that addiction
in itself is a sucient basis for a defence,139 the presence of a substance-use disor-
der does complicate an otherwise straightforward intoxication scenario. Addiction,
for instance, may give rise to questions about the amount of control D has over her
substance use, disputing the voluntary nature of the intoxication. Yet at the same
time, addiction may not greatly impair the cognitive capacities of the addict and
137 RB, 4 January 2018, ECLI:NL:RBOVE:2018:15.
138 Mikkel Arendt et al., “Cannabis-induced Psychosis and Subsequent Schizophrenia-spectrum Disorders:
Follow-up Study of 535 Incident Cases” [2005] 187(6) Brit J Psychiatry 510.
139 D Roef and RJ Verkes, “Medicijngebruik” (n.132).
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80 Journal of International and Comparative Law
will often result in sucient insight and foreseeability into intoxicated behaviours
to cross (rather minimal) legal thresholds for accountability.140 Without going into
further detail, it is clear that this is yet another complicating factor when applying
culpa in causa doctrines to defendants with mental disorders.
V. The Role of Bespoke Prior-Fault Oences
In this nal section, we discuss the potential for, and experience of, intoxica-
tion/prior-fault oences. How can/do such oences operate, either within or as a
replacement for broader systems of prior-fault rules? And what are the challenges
in their construction and operation, both theoretically and in practice?
A. Bespoke prior-fault oences in England and Wales
Debates about the potential for a bespoke intoxication/prior-fault oence in Eng-
lish law have been around for almost as long as the intoxication rules themselves.141
However, as yet, no such oence has been created. To be clear, the potential for
such an oence would be to replace the current intoxication rules as they apply to
the construction of oences; meaning prior-fault rules relating to the blocking of
defences are not at issue.
The potential benets of such an oence are clear and compelling. On one
hand, it would allow us to abandon the ctions of the current law: D would not
be convicted of an existing oence as if he possessed in fact missing mens rea,
and there would be no need to search for an equivalence thesis in an attempt to
support such a ction. While, on the other hand, cases such as Nadruku would not
go unpunished: D may not be liable for a traditional oence against the person due
to his lack of mens rea, but he could be liable for the new bespoke intoxication/
prior-fault oence (as he would be within the German system). The design of a
new oence would provide a unique opportunity to consider exactly what D has
done wrong across T1–T2, to design appropriate doctrinal boundaries to target that
wrong and to label and punish it appropriately.
However, the challenges in creating such an oence should not be underesti-
mated. Where the current law disguises complexity within a legal ction that can
appear relatively simple in its application, the creation of a new oence forces us
to consider and resolve a host of underlying issues. These issues include the precise
targets of T1 blame to the causal connections between T1 and T2, as well as how
such an oence will operate alongside other oences and defences in practice.
Indeed, of the relatively few eorts we have seen attempting to set out the detail of
140 Anna Goldberg, “The (In)signicance of the Addiction Debate” [2020] 13 Neuroethics 311.
141 Discussed, for example, in the Butler Committee, Report on Mentally Abnormal Oenders (Cmnd
6244, 1975) and a minority view within the Criminal Law Revision Committee, Oences against the
Person (Cmnd 7844, 1980).
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Prior-Fault Blame in England and Wales, Germany and The Netherlands 81
such an oence, each has encountered fundamental criticism. The Law Commis-
sion’s 1992 proposal,142 for example, struggled to dierentiate labels and punish-
ments between dierent classes of intoxicated harm causers, included no specic
approach to link T1 and T2 events, and was criticised by practitioners as being
unduly complex.143 More recently, Williams has set out an alternative model linking
intoxication with the actus reus of established oences, allowing labels and punish-
ments to track those oences in a manner comparable to criminal attempts.144 How-
ever, again, despite some notable merits to this approach, it may be criticised for
choices made regarding both T1 (eg why focus on intoxicated fault alone) and T2
(eg tying the oence to existing actus reus elements risks overcriminalisation).145
Challenges here create an obvious incentive to look to other legal systems,
such as Germany in particular, for inspiration and guidance.
B. Bespoke prior-fault oences in Germany
As mentioned, if there is no alic situation, the excused oender can be held crimi-
nally liable for the oence of dangerous intoxication (§ 323a GCC). The provision
reads as follows:
(1) Whoever intentionally or negligently puts himself into a state of intoxica-
tion by consuming alcoholic drinks or other intoxicating substances incurs a
penalty of imprisonment for a term not exceeding ve years or a ne if they
commit a wrongful act whilst in this state and cannot be punished on account
thereof because he lacked criminal capacity of guilt due to the intoxication or
if this cannot be ruled out.
(2) The penalty may not be more severe than the penalty provided for the oence
which was committed in a state of intoxication.
This oence was created as a legal “compensation device” to prevent impunity for
cases of full intoxication, as these cases would otherwise be excused due to com-
plete incapacity according to § 20 GCC.146 The existence of this oence essentially
admits that extremely intoxicated oenders cannot be held liable for their actions,
but that there is still the perceived social need for punishment.147 What is crimi-
nalised is not the serious intoxication itself—this can hardly be called a wrongful
142 LC127, Part IV.
143 This led the Commission to reject this proposal in their subsequent report. See Law Commission, Intox-
ication and Criminal Liability (No 229, 1995); Jeremy Horder, “Sobering Up? The Law Commission
on Criminal Intoxication” [1995] MLR 534.
144 See R Williams, “Voluntary Intoxication” (n.21).
145 See J Child, “Prior Fault” (n.12).
146 Franz Streng, Münchener Kommentar zum Strafgezetsbuch (“Munich Commentary of the Criminal
Code”) (München: Beck, 2020), § 20 Mn. 151; B Fischer and J Rehm, “Alcohol Consumption” (n.41),
719.
147 A Loughnan and S Gless, “Understanding the Law on Intoxicated Oending” (n.89), 362.
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82 Journal of International and Comparative Law
act—neither is D responsible for the harms caused (eg bodily assault or manslaugh-
ter): he is criminally liable for putting himself in a dangerous state of severe intox-
ication that has subsequently resulted into harmful consequences to others. As the
oender is excused for the oence committed in the state of severe intoxication,
the sentencing can never exceed the punishment that the oender would otherwise
have received, if he were convicted using alic rules.
The major dierence between § 323a GCC and the applied alic doctrine is that
there is no longer any (culpable) instrumental link between becoming intoxicated
and the crime committed.148 While the alic oender foresees or should foresee the
possibility of committing the oence, prior to or during the act of becoming intox-
icated, this is no longer necessary for § 323a GCC.149 The only required mens rea
element is intent or negligence to becoming senselessly intoxicated. This means
that negligent intoxication is sucient, even for crimes committed under severe
intoxication that would otherwise demand intent.150 A typical example would be a
case where the oender intoxicates himself without any intent (or foreseeability) to
harmful behaviour, but then in a state of “profound consciousness disorder” phys-
ically assaults his partner while being intoxicated.151 In such a case, the oender
would be excused for intentionally inicting serious bodily harm and would subse-
quently be punished for § 323a GCC.
There seems to be a wide agreement that § 323a GCC can be categorised as
an abstract endangerment oence, with wrongful consequences as an objective
condition.152 However, the theoretical foundation of the oence remains contested
especially concerning its compatibility with the principle of guilt.153 The maximum
sentencing term seems to reect anticipation of the kind of harm committed—
serious bodily assault, for instance, also has a maximum of ve years and destruc-
tion of property a maximum of two years—while D’s culpability is established only
regarding the intoxication. In other words, as there is no link anymore between the
intoxicated state and the wrongful act, the oence embodies a kind of strict liability
for any wrongful harm that may result from being mindlessly intoxicated.
Courts justify this with the policy argument that the wrongful act reects (or
materialises) the intrinsic “abstract” dangerousness of the intoxication. Some argue
that this reasoning is incompatible with the wrongful act being a mere objective
condition for liability and that the sentence must thus reect the culpability of the
intoxication alone.154 Others criticise that the maximum punishment of ve years
may be too low if serious crimes (homicide oences) are committed and have
148 See B Fischer and J Rehm, “Alcohol Consumption” (n.41), 718.
149 Ayşe Atalay, “The Formulation of Voluntary Intoxication in Continental Law” [2020] Int J of Oender
Therapy and Comp Crim 10.
150 See MD Dubber and T Hörnle, Criminal Law (n.33), 286.
151 Cf B Fischer and J Rehm, “Alcohol Consumption” (n.41), 718–720.
152 F Streng, “Actio Libera in Causa” (n.85), 152.
153 See C Roxin and L Greco, Strafrecht (n.42), § 23 Mn. 8–11; MD Dubber and T Hörnle, Criminal Law
(n.33), 286.
154 A Atalay, “The Formulation of Voluntary Intoxication” (n.149), 10.
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Prior-Fault Blame in England and Wales, Germany and The Netherlands 83
proposed a higher punishment. Still, others suggest a more systematic recodi-
cation of 323a GCC covering all possible intoxication cases, including dierent
prior-fault scenarios, thereby also addressing the current problem of uncodied
alic rules.155
C. Bespoke prior-fault oences in the Netherlands
The Netherlands does not have a bespoke prior-fault oence, and neither do we
see an academic or political debate about its creation. The Dutch culpa in causa
doctrine may be criticised for a lack of clear requirements, but there is little-to-no
fundamental or structural criticism of the way the doctrine is used to solve cases of
prior-fault.156 Especially for cases other than intoxication, there is little dissatisfac-
tion with the workings of the doctrine. The application of culpa in causa to com-
plex intoxication cases is the most controversial and more elaborately discussed,
but even then, the discussion centres on more practical concerns rather than funda-
mental ones.
An exception is an essay by Wemes, who pleads to introduce an alic-like struc-
ture with a focus on the nature of the oence (and the associated fault) rather than
using culpa in causa as a negative requirement for a defence.157 The debate here is
whether such a scheme would introduce a “free pass” to delinquent behaviour,158
or whether a narrowing of the current prior-fault rules is necessary for principled
and fair doctrine. Such potential changes should not be overstated, however. The
strictly legal denition of intention within the Dutch system means it is extremely
unlikely to be negated by (disordered) mental states, and so an intentional oence
will not be acquitted based on intoxication only. At most, a very severe and rare
case of substance-induced psychoses may be excused (but even then, may be met
with compulsory treatment and connement).
Still, even Wemes does not discuss a bespoke oence such as the German
provision. Many practitioners are satised with the practicality of the doctrine
while simultaneously agreeing that it is not perfect. In terms of improvement, the
Dutch model could do with more clearly dened requirements, not necessarily for
self-defence and necessity but rather for cases of intoxication. Especially regard-
ing the nature and scope of foreseeability, the question remains: is intoxication a
form of abstract endangerment in which any voluntary consumption of substances
automatically leads to a responsibility for the consequences? Or if a more specic
risk-awareness is required, awareness to what extent is needed? Is the foreseeabil-
ity of aggressive/criminal (again: more abstract) behaviour sucient, or should the
155 See for a critical overview of these proposals: I Stassen-Rapp, Die Behandlung (n.34), 299–302.
156 See R Jansen, “Drie Modellen” (n.57).
157 Leo Wemes, “Strafbaarheid en Zelntoxicatie: Actio Libera in Causa” (“Criminal Liability and Self-in-
toxcation: Actio Libera in Causa”) in G Boek (ed), Grensoverschrijdend strafrecht (Arnhem: Gouda
Quint, 1990) p 100.
158 HR, 9 June 1981, ECLI:NL:HR:1981:AC0902, NJ 1983, 412 annot. Van Veen.
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84 Journal of International and Comparative Law
awareness include the type of oence? It would be greatly benecial if the Supreme
Court would specify this in more detail; and, if nothing else, these are questions
that Dutch lawyers and academics should be asking.
VI. Conclusions
The content and function of prior-fault criminalisation provide a challenging focus
for comparative study. On the one hand, common features to the problem (eg link-
ing T1 and T2 events) and the variety of approaches across jurisdictions rightly
draw our comparative interest. However, the contingent nature of prior-fault rules,
integrated into the application of oence and defence elements, makes any severing
of such rules from their context (ie for more direct comparative purposes) dicult
and apt to mislead. It is for this reason that we have structured our comparison by
setting out the approaches of each jurisdiction in turn, allowing the comparative
picture to develop. In these concluding remarks, we briey highlight three themes
we think are most interesting.
First, noticing the contingent nature of prior-fault rules, it is useful to reect on
how the legal structures of our three jurisdictions inuenced the roles played by the
rules themselves. For example using prior-fault to construct an oence, as we have
seen for England, is not common in civil law jurisdictions, which favour the use
of prior-fault for matters of unlawfulness or blameworthiness. In the Netherlands,
prior-fault does not play a role in determining intent or negligence, whereas Ger-
many does accept this to some extent in very severe circumstances. In fact, there
is little discussion on the distinction between constructing and blocking or on how
prior-fault rules ought to be labelled in the civil law systems, although the German
debate on the theoretical grounding of alic clearly reects similar concerns. Argua-
bly, the equivalence debates in English law (ie identifying equivalence between pri-
or-fault and precise mens rea terms), arguably the core of academic disagreement
in that jurisdiction, are almost entirely avoided in the Netherlands and Germany.
Looser notions of equivalence with other markers of “blameworthiness” may still
be required, in particular foreseeability, but they mostly avoid the conceptual and
normative mismatches we see in England.
The second, and often the central focus of our comparison, has been the
approach of each jurisdiction to understand prior-fault at T1. The English system
is arguably the most rigid in this regard, explicit in its association of prior-fault
with intoxication and explicit in its exclusion of prior-fault analysis from mental
disorders. We (and others) have been critical of this, highlighting the lack of nor-
mative justication as well as the analytical (forensic) problems created through
category-based exclusions in the context of often uncertain comorbidities. On the
other end of this, we have highlighted the German and Dutch systems as theoreti-
cally open to prior-fault analysis outside of intoxication alone and thereby avoiding
problematic categorical analysis. However, in each jurisdiction, in practice, we see
the same concerns about (culpable) causal routes to mental disorder that (at least
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Prior-Fault Blame in England and Wales, Germany and The Netherlands 85
partially) justify the English exclusion, resulting in a clear reluctance for courts
to engage with prior-fault analysis outside of intoxication cases. The point here is
that, even if we are right to criticise category/proxy-based analysis, it is important
to remain cognisant of the practical realities of looking beyond it.
Related to this is the function and content of the T1–T2 nexus. What markers
are required for justied prior-fault reasoning? The best approach, it seems to us,
is to focus on foreseeability. Consequently, there is a need to dene what needs to
be foreseen and what this entails. We have explained that, in the Netherlands, the
current requirement is an abstract form of foreseeability; that is intoxication has
almost become an abstract endangerment oence in which any intoxication of any
substance leads to prior-fault. On the other hand, the German alic doctrine has
specied a more concrete notion of foreseeability to mean an awareness of at least
the type of crime committed. We favour this German approach as it allows for a
more concrete culpable link between T1 and T2. Thus, there is a rmer normative
basis to apply prior-fault rules and negate any mitigating or excusing eects of the
intoxication. For England, this would also solve the problem of prior-fault insanity
in which (culpable, ie foreseeable) non-compliance of medication could be used as
an argument to block the insanity defence. For the Netherlands, this would result in
a better distinction between cases such as the aforementioned culpa in causa case
and the cannabis psychosis case.
Third, we engaged in the important debate about a bespoke prior-fault oence.
Is this necessary, and what would be the purpose of such an oence? Should this
be in addition to or instead of prior-fault rules? What seems to matter is, rst of
all, whether there is the ambition to dierentiate between a culpable and non-cul-
pable creation of the conditions of a defence. If so, then a two-fold mechanism
like in Germany is a viable solution, which allows for a distinction between these
two types of situations. If one would not favour such a distinction, this results in
simply substituting missing elements at T2 or denying a defence merely based on
intoxication without a normative link. We nd such outcomes undesirable, as dis-
cussed throughout. Thus, bespoke oences provide a unique opportunity to craft
an approach to prior-fault that accurately labels and punishes what D has done,
avoiding inculpatory legal ctions. Importantly, a bespoke oence seems to have a
complementary role working alongside prior-fault rules to allow for the distinction
between culpable and non-culpable prior-fault. The German intoxication oences
combined with alic rules demonstrate that such bespoke oences need not nec-
essarily represent the supplanting of other rules, often debated in common law
jurisdictions. Equally, the continued use of alic and the apparent reluctance of pros-
ecutors regarding the intoxication oence should encourage caution.
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